Succession Act ss18-26

Court may authorise a will to be made, altered or revoked for a person without testamentary capacity; on specific terms as required by the court; even a minor.

Note: legal test – not a medical test. Testamentary power cannot be determined by a DR. Dr can only determine the mental capacity.

Knowledge and Approval

Astridge v Pepper reinforces that there are two important principles of English law:

Perera v Perera which says that when a testator has given instructions to a solicitor to prepare a Will and the testator is fully able to understand and appreciate what he is doing and if the solicitor draws a Will according to those instructions then the will is good even though at the time the testator executes it the testator only understands that he is executing the will that was instructed and is no longer capable of understanding the clauses which give effect to them. (This is a good reason for a solicitor in practice to only take down instructions directly from the testator rather than through an intermediary).

Astridge v Pepper [1970]

Facts: This was a case where the sole beneficiary, a Mrs McCarthy, actually instructed the solicitor. She telephoned the solicitor and said that the testatrix wanted a new Will leaving all the money to her, Mrs McCarthy. The solicitor did not know the testatrix very well, and only saw her on the occasion of when he took the Will he had drafted for her to sign. The solicitor gave her the Will to read and he said that she appeared to read it thoroughly. He said to her "Do you understand the Will?", and she said, “yes, I am leaving all my money to Mrs Mac." He said, "Is that what you want?" and she responded "Yes". After reviewing all of the evidence the judge came to the conclusion that the testatrix, then aged 99 and in hospital, really did of her own volition and without undue influence intend to leave her estate to Mrs McCarthy and had told her to get the solicitor to draw the Will, and the judge found, that though she did not read the Will and was not capable of understanding_ he was satisfied that she understood the conversation when she said that she said that she was leaving "all  my money to Mrs Mac" and by all her money the judge believed that she meant her whole estate. Not all of the Will was validated. That portion leaving the whole of the estate to Mrs McCarthy was found to be valid but the judge ruled the rest of it (dealing with executor's etc) was bad as she did not remit and it was not explained to her.
 
Fraud and Undue Influence

FRAUD

A Will may be partly or wholly invalidated if the execution of it is induced by fraud. Fraud exists where the testator has been misled by wilfully false statements, for example;
1. if you told the testator that her only son is dead and that you intercepted all the letters from the son and burnt them so that she never got them;
2. By wilful suppression of material facts;
3. Failure to tell the testator of the effect of the testamentary action can in some cases be fraudulent, and
4. The most obvious situation is if the testator is compelled to execute the Will by force or if because of fear is prevented from executing a Will.

UNDUE INFLUENCE

To have a Will invalidated because of undue influence you really have to prove fraud, it is very close to fraud. What you have to in fact prove is that the Will that has been made really does not express the last wishes of the testate because the testator's Will has been overborne by force or fear or something very close to it.

Sir J P Wilde in Hall v Hall says persuasion is not unlawful but undue influence is “pressure of whatever character….if so exerted as to overpower the violation without convincing the judgment”.

The rules as to undue influence, enough to invalidate a will, are quite different to the rules as to what amounts to undue influence sufficient to set aside a gift made inter vivos as in equity. In testamentary law, there is no presumption of undue influence with certain relationships as in equity. Once it has been proved that a will has been executed with due solemnity (in accordance with the formal requirements, by a person of competent standing and apparently a free agent) the burden of proving it was executed under influence lies upon the party who asserts it, there is no presumption that it exists.

Hidson v Weatherill [1959]

Facts: where a gift made by a testator to his solicitor was challenged and the court made it clear that no presumption of undue influence could arise simply because of the relationship.

Held: Different rules apply to Wills to gifts inter vivos, mainly because people who are in wills are people who are in fiduciary relationship with you.

Wintle v Nye [1959]

Facts: where you can make gifts to people who are in a fiduciary relationship with you and no presumption of undue influence arises, but, in this case the House of Lords said that whilst it is true to say that it is not the law that under those circumstances can a solicitor or any other person for that matter who has prepared a Will for someone can never take any benefits under it, nonetheless, the fact that he has drawn up the Will does create a suspicion and this must be removed by the person propounding the will. The amount of suspicion varies according to the case, it can be slight and easily dispelled or very grey. In this case the degree of suspicion was very gray, you have a solicitor who over a period of time drew up a will for an old rich lady, and not a very business like lady, the will started off leaving her residue to charity but ended up leaving it all to the solicitor. He kept the will, he never gave her a copy, she had no independent advice and he never suggested that she should have any.
Held: The House of Lords held that all parts of the will leaving gifts for the solicitor were bad.

You should now also pay heed to the Law Society guidelines which deal with situations where a solicitor has drafted a Will in which a testator has provided for dispositions in the solicitor's favour for commission. You should send them to another person for independent advice.

Persuasion

Hall v Hall (1868)

Facts: the court emphasised that "persuasion" in relation to Wills is not unlawful. You are entitled to persuade a testator to ma e a Will in your favour by appealing to the testator's affections, pressing your claim as a relative etc, all that is legitimate provided you do not press so hard that you force the testator to make a Will that the testator really does not want to make.
Held: The court said “the testator can be led but not driven”.

Wingrove v Wingrove (1886)

Facts: Case in which it was said that "to be undue influence in the eve of the law it must be co-ercion". When a person is co-erced to do something that they do not desire to do then that is undue influence. This coercion can be of different degrees, depending upon the circumstances you may need very little to produce the desired effect if the person is very old and feeble or seriously ill so that the testator will do anything for the sake of peace and quite. On the other hand a lot more is needed if the person is fit and mentally capable.

Burden of Proof

The onus of proving a Will lies on the person propounding it, which is usually the executor, but usually once you have proved the Will as duly executed by a person of competent understanding, then the onus of proving otherwise will lie on the person asserting it. So the onus of proving undue influence lies on the person asserting undue influence. However do not forget the principle mentioned before that the onus on the person propounding the Will is harder to discharge if the suspicion of the Court is aroused in any way such as when the person who draws the Will also receives large benefits under the Will, especially if the beneficiary is a stranger to the testator.

Lack of Testamentary Intention

What if the testator did intend to make a will at all?

Imparting of knowledge only

In the Estate of Knibbs [1962]

Facts: in this case the testator was just imparting a bit of information to the audience. It concerned a privilege testator, who could make an oral Will. He was unmarried but had a sister whom he was fond of and had named her his next of kin in his employer’s records although in fact she was not. In a conversation he was having he said, “If anything ever happens to me then my sister will get anything I have got”. His sister sought to get probate of these words as he had not left any other will.

Held: It was held that there was no testamentary intention. He did not intend the conversation to act as a disposition of goods after death, he was only telling his audience something that he though he had already done, imparting information.

Present “inter vivos” gift

King’s Proctor v Daines (1830)

Facts: In this case it shows that it may have been intended to be a present gift. Here an instrument had been signed by the deceased and witnessed by two witnesses as required by a Will. It said "I do give all my goods to Mary Daines". It was held that there was nothing to show that this was a Will.  It was not called a Will, there was no reference to death or legacy, or executors, words like devise or bequeath as used in Wills. If anything it was a "present" gift (inter vivos), certainly not a will.  It could be queried that if he gave all his goods to Mary Daines as a present gift what would he have lived on, or was it actually meant to be a Will? The principle is important, each judge may construe the facts differently.

A Joke

Nichols v Nichols (1814)

Facts: In this case, it was a joke. Nichols was a solicitor given to ridiculing verbosity in wills. He used to have competitions with a friend to show that he could draw shorter wills than the friend could. After looking at one of the wills his friend wrote, he wrote, “I leave my property between my children, I hope they will be virtuous and independent, that they will worship god and not black coats”. He then allegedly said, “There that is as good a will I will ever make”.

A Mistake

In the Estate of Meyer

Facts: In this case a testatrix and her sister made identical Wills and then they instructed a solicitor to prepare identical codicils. On the death of the testatrix it was discovered that she had executed the codicil that was prepared for her sister, they signed each others codicil. Held: It was held that even though the codicil represented her wishes as they were identical it was invalid as she had never intended to sign this particular document. Could this be decided differently today?

Section 27 of Succession Act – rectification power; solicitor would have to pay all the costs.

27 Court may rectify a will
(cf WPA 29A)
(1) The Court may make an order to rectify a will to carry out the intentions of the testator, if the Court is satisfied the will does not carry out the testator’s intentions because:
(a) a clerical error was made, or
(b) the will does not give effect to the testator’s instructions.
(2) A person who wishes to make an application for an order under this section must apply to the Court:
(a) within 18 months after the date of the death of the testator, or
(b) if the Court has made an order under section 17 of the Family Provision Act 1982 specifying a lesser period in relation to an application concerning the deceased testator under that Act-within that period.
(3) However, the Court may, at any time, extend the period of time for making an application specified in subsection (2) if:
(a) the Court considers it necessary, and
(b) the final distribution of the estate has not been made.