Sharp v Adam

English Succession Law

Sharp v Adam
Image: ‘Unsaddling’ by David Mouse Cooper

Testamentary capacity and the long-term effects of a debilitating terminal illness, are central to a case where despite numerous witness accounts and medico-legal opinion, the power to reach an exacting judgment remained elusive to the end.

Having been diagnosed with multiple sclerosis in 1980, an equine stud owner and racehorse trainer was left with virtually no direct means of communication at the time his revised will underwent drafting and execution. This change in disposition was such that precluded his two daughters from inheritance, and which led to costly litigation in contention of a perceived rejection.

During the twenty-so years of his decline, the testator had been supported by a number of close friends and acquaintances through employment, legal services, medical assistance, 24-hr care and lifelong companionship. At the outset of his condition, the testator was able to communicate without detriment, yet as the years passed, his only means of dialogue was through mechanical devices, gestures and blinking.

This resulted by extension of the crippling effects of the disease, which according to medical data, was accompanied by progressive weakening of the cognitive faculties, as often found in cases similar to this. While the original will dated February 1997 made arrangements for his two daughters to benefit from his £1m estate, he decided in 2001, to revise the will in favour of his two primary employees, who had both remained loyal to him for a period of over twenty-five years.

This came at a time when those closest had begun to voice concerns as to his mental state, along with his long-standing reliance upon medication to accommodate the increasingly painful symptoms. After a number of consultations with his trusted solicitor, doctor and friends, the revised will was drafted and executed in full accordance with legal procedures, and on the understanding that while the removal of his daughters from the will was prima facie absolute and seemingly out of character, there was simply no evidence to suggest the testator was anything less than lucid and of sound mind.

Upon his death, the matter was brought before the court, whereupon the daughters claimed their father lacked testamentary capacity at the time the new will was drafted, and that under the principles used in the Banks v Goodfellow test which reads:

“It is essential to the exercise of such a power that a testator [a] shall understand the nature of the Act and its effects; [b] shall understand the extent of the property of which he is disposing; [c] shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, [d] that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

The will was void, therefore the 1997 will must stand. Having presented the evidence to a discerning jury, the case was made using expert testimony from both a Professor of Neuropsychiatry and a highly qualified Neurologist, who between them argued both for and against the testator’s capacity to instruct and bequeath his estate. Despite the compulsion of the two professional reports, neither party had met the deceased, nor been present when the revised will was prepared. This mitigating element was contributive to the granting of an appeal after the jury decided against the 2001 will, whereupon it was presented again to the Supreme Court.

While the previous judge had found himself contradicting the viewpoint of the Professor on a number of points, the Court chose to rely upon the argument that in keeping with medical expectations, the deterioration of brain function within multiple sclerosis cases would be representative of a man unable to hold himself fully accountable when preparing a will at the stage the testator had reached when doing the same; while emphasis was also placed upon the long-term drug usage of the deceased, which had incidentally ceased sometime before the revision occurred.

It was this, along with the sudden reversal of fortune for the testator’s employees, that solidified the verdict to dismiss the appeal before noting that while subjective opinion of those witness to testator requests frequently conflict with that of medical data, the words of Lord Cranworth in Boyse v Rossborough remind us all that:

“There is no possibility of mistaking midnight from noon, but at what precise moment twilight becomes darkness is hard to determine.”

Banks v Goodfellow

English Succession Law

Banks v Goodfellow
Image: ‘ Face-Madness’ by Kim Byungkwan

Intermittent delusions and moments of panic are obvious symptoms of repressed trauma, but in 1870, the diagnosis was quite different. When a testator suffering those very disturbances drafted his final will, the beneficiary passed soon afterwards, leaving their next-of-kin defending the right to inherit through intestacy when a claim of lunacy was used to challenge the validity of the will.

Known by many as a man of means, the deceased was prone to suffering immeasurable anxiety around a named individual, who even after his demise, was still considered by the testator to be haunting and molesting him in spirit as he had in life. This outlandish claim resulted in his being committed to the local lunatic asylum, before his eventual release and reintegration into the local community.

While his symptoms continued to a lesser degree, the testator was still regarded as somewhat insane by both the local doctor and parish clergyman, yet towards the end of his life he had made clear and concise arrangements with regard to the exactness of his will, the continued lease of owned property, and those he wished to attest to, and benefit from, his legacy.

Upon his death in 1865, the will was executed as per prior instructions, whereupon his niece and sole beneficiary passed two years later, with no prepared will and absent of children. At the point of litigation, the claimant argued that due to the testator’s susceptibility to psychological imbalances, the will was now invalid, and thus under the rules of intestacy, the estate was due to the testator’s heir, and not the beneficiary’s half-brother.

When first heard, the court offered the opinion of a jury, who having heard the facts, agreed that the will was, despite any inconsistencies in the testator’s mental health, valid and duly executable. With the court awarding so, the case was put before the Queen’s Bench, whereupon recent precedent was used to evaluate the contention raised.

As laid down in Smith v Tebbitt, the Court of Probate had previously ruled that:

“[A]ny degree of mental unsoundness, however slight, and however unconnected with the testamentary disposition in question, must be held fatal to the capacity of a testator.”

However in Greenwood v Greenwood, Lord Kenyon argued:

“If he had a power of summoning up his mind, so as to know what his property was, and who those persons were that then were the objects of his bounty, then he was competent to make his will.”

While in Cartwright v Cartwright, Sir William Wynne stipulated that:

“If a lunatic person, or one that is beside himself at some times, but not continually, makes his testament, and it is not known whether the same were made while he was of sound mind and memory or no, then, in case the testament be so conceived as thereby no argument of phrensy or folly can be gathered, it is to be presumed that the same was made during the time of his calm and clear intermissions…”

Adopting a supportive stance to those viewed above, Legrand du Saulle likewise wrote in ‘La Folie deviant les tribunaux’:

“[H]allucinations are not a sufficient obstacle to the power of making a will, if they have exercised no influence on the conduct of the testator, have not altered his natural affections, or prevented the fulfilment of his social and domestic duties…”

This left the Court under no illusions as to how succinctly the testator had both discussed and prepared his will in line with his financial circumstances and clarity of mind, and so despite the urgency of the appellant where imperfection of the mind would result in nullity, there was simply not enough evidence to undermine the logic of the deceased, and thus the will was upheld, while notions of jury misdirection quickly dismissed.

Key Citations

“It is not given to man to fathom the mystery of the human intelligence, or to ascertain the constitution of our sentient and intellectual being. But whatever may be its essence, every one must be conscious that the faculties and functions of the mind are various and distinct, as are the powers and functions of our physical organization.”

“The English law leaves everything to the unfettered discretion of the testator, on the assumption that, though in some instances, caprice, or passion, or the power of new ties, or artful contrivance, or sinister influence, may lead to the neglect of claims that ought to be attended to, yet, the instincts, affections, and common sentiments of mankind may be safely trusted to secure, on the whole, a better disposition of the property of the dead, and one more accurately adjusted to the requirements of each particular case, than could be obtained through a distribution prescribed by the stereotyped and inflexible rules of a general law.”

“[T]o the due exercise of a power thus involving moral responsibility, the possession of the intellectual and moral faculties common to our nature should be insisted on as an indispensable condition.”

 

Re White (Deceased)

English Succession Law

Re White (Deceased)
Image: ‘Old Men of the Almshouse’ by Robert Lenkiewicz

Amendments to any existing will are subject to the terms of the Wills Act 1837, and so on this occasion, the revisionary wishes of the now deceased, fell victim to the powers of statute, when after coalescing with his closest friends, insufficient steps were taken to enforce the redrafted will, resulting in a loss of beneficial rights and the sting of natural law.

In 1981, the testator drafted a will that included apportioned bequests to an extended number of acquaintances, some of which stood to benefit from his generosity in substantial quantity. In 1984, and for one reason or another, the testator chose to amend the will so as to allow for partial intestacy, along with revised percentages of benefit for those closest to him.

Having executed the changes in the company of those elected to attest his actions, additional text was added at the foot of will in such a way that showed the will had been amended and attested by the two parties present, yet with the exception of a new signature by the testator himself.

Under powers of the Wills Act 1837, s.9 (as substituted by the Administration of Justice Act 1982 s.17) reads:

“No will shall be valid unless (a) it is in writing, and signed by the testator, or by some other person in his presence and by his direction; and (b) it appears that the testator intended by his signature to give effect to the will; and (c) the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and (d) each witness either (i) attests and signs the will; or (ii) acknowledges his signature, in the presence of the testator (but not necessarily in the presence of any other witness), but no form of attestation shall be necessary.”

While s.21 of the 1837 Act reads:

“[N]o obliteration, interlineation, or other alteration made in any will after the execution thereof shall be valid or have any effect, except so far as the words or effect of the will before such alteration shall not be apparent, unless such alteration shall be executed in like manner as hereinbefore is required for the execution of the will; but the will, with such alteration as part thereof, shall be deemed to be duly executed if the signature of the testator and the subscription of the witnesses be made in the margin or on some other part of the will opposite or near to such alteration, or at the foot or end of or opposite to a memorandum referring to such alteration, and written at the end or some other part of the will.”

Or put simply by Buckley J in In re Hay:

“[I]it is quite plain that an alteration in a duly executed will made after the execution thereof is not effective unless the alteration is executed in the manner required by the statute for the execution of the will.”

Unfortunately for both the testator and the defendants, this resulted in the amended will no longer standing as valid on grounds that no new signature had been added by the testator during the amendment, and that the signatures of those witnessing were not considered as that attesting the new will, only the amended statements.

This had a secondary effect, inasmuch as at the point of litigation through a writ challenging the validity of the 1984 will, the claimant was now unable to receive any residual estate, while those who also stood to gain from the revised percentages would have been left unable to claim under the new will, as they were acting as both witnesses and beneficiaries, which is unlawful under s.15 of the Wills Act 1837.

Key Citations

“The act of signing happened in 1981, and there is no conceivable basis on which, by signing the will in 1981 the testator intended to give effect to the amended 1984 will. Even if “his signature” merely refers to the presence on the document of the signature, I can still see no basis on which it can be said to appear that it was by the presence of that signature that the testator intended in December 1984 to give effect to the will.”

“[A]lthough the signature which the testator in this case had written in 1981 appears on the document, it does not appear that it was by that signature that he intended to give effect to the 1984 will.”

Re Denning

English Succession Law

 

Re Denning
Image: ‘Pill Creek, Feock, Cornwall’ by Christopher Wood

The formalities of a last will and testament are brought to bear when upon their death, the testator had left a declaration of intent, but with two named individuals on the reverse and nothing to connect them.

In accordance with the rules of probate, the alleged beneficiaries applied for a grant of letters of administration, on the strength that the deceased had orally expressed her intention to bequeath all her possessions to two cousins, upon which she had written on a small sheet of plain paper, words echoing that sentiment, yet with only ‘signed’ at the foot of the document. Written on the reverse, and while upside down, were the two names of women who had since become untraceable.

Keen to endorse the aims of the testator, the judge explained that perhaps the time was right for the application of the maxim omnia praesumunter rite esse acta meaning ‘all things are to be done in due form.’

It was also noted that as expressed by Sir Francis Jeune in In the Goods of Peverett:

“[T]he court will not allow a matter of form to stand in the way if the essential elements of execution have been fulfilled”.

It was further commented that at that time, the court felt it had extended its willingness to uphold the wishes of a testator to its fullest; however the judge felt that despite the presence of an attestation clause in Peverett, there was little to connect the names of the two women to the express desires of the deceased.

Despite this, and in keeping with the powers of a court to declare that which was clearly felt at the time of writing the will, the judge took the decision to extend the boundaries further, as there was no credible reason why the two signatures were entered on the reverse other than to attest and support the wishes of another.

Key Citations

“Having taken into account all the factors, I think it proper to take that step further because it seems to m e that there is no other practical reason why those names should be on the back of the document unless it was for the purpose of attesting the will.”

Re White

English Succession Law

Re White
Image: ‘The Red Chair’ by Rick Nilson

When a testator decides to bequeath his business to both his widow and former business partner, questions are raised as to exactly how those assets are determined, and whether liability for accrued debts and outstanding taxes are inclusive of such a gift.

Having worked as a house furnisher for many years, the deceased had taken steps to turn his assistant into a partner, so as to enable her to continue running the company after his death, as explained in clause 7 of the will:

“7. I give and bequeath the business of a house furnisher at present carried on by me at 64 Myddleton Road, Bowes Park . . . as to two-thirds to my wife Margaret absolutely and as to the other one-third to Bessie Amy Hull (in consideration of her long and faithful service) for their own use and benefit absolutely and it is my wish that the said Bessie Amy Hull shall carry on and manage the business as she shall think fit.”

As would be expected with any ongoing business, there were a number of financial assets and liabilities, including £6660 in a personal bank account use for private and business transactions, associated stock materials, debts of £608, outstanding client invoices, £252 from a previous commercially used property sale, the freehold property currently used for business purposes and death-related liabilities of £1247. The question raised by the executors was one in need of clarification regards what constituted business assets and liabilities, and what then lapsed into the residual estate for the benefit of the widow.

Relying upon recent cases such as Re Rhagg and In re Barfield from which to draw lines of demarcation, the judge found himself at odds with how best to separate each from the other, while taking issue with the notion that a testator declares such things as a gesture of goodwill, as opposed to an all-encompassing act of deliberation. It was also argued that while an air of expectation lay in the mind of the widow, the meaning of residuary was not one of hierarchy, but instead that containing items and assets remaining after dispensation of the estate.

Turning instead to the essence of clause 7, the judge drew note to the testator’s wish for the business to continue, thereby taking a broader view of how each component held within the functioning of any enterprise must be considered as essential to its continued operation, thus ruling that aside from the outstanding taxes owed by the testator, all other items were to fall under the umbrella of the business, and so therefore nothing would lapse into the residual estate, an ethos underpinned by the words of Simonds J in Rhagg, when he outlined how “the substance of the bequest is the assets of the business subject to its liabilities.”

Key Citations

“[O]n its true construction, clause 7 contemplates a continuation of the business, lock, stock and barrel, as it existed at the date of the death of the testator.”

Wintle v Nye

English Succession Law

Wintle v Nye
Image: ‘Consulting her Lawyer’ by Frank Dadd

Amendments to an existing will by the hand of an unwitnessed solicitor, brings with it grave concerns within the courts, and on this occasion, there was little to endorse the legitimate redirection of assets from the testatrix’s named charities and extended family members, to that of a sole executor assigned to promote fair and transparent dispositions.

Having herself become wealthy through the acquisition of property and funds resulting from deaths of those close to her, the now deceased testatrix turned to the professional and perhaps personal advice, of a solicitor whose father before him had served the family’s legal needs.

During the decade preceding her death, there were a significant number of alterations made to her existing will and codicil, primarily through repeated consultation with the now respondent solicitor. At the outset of their working together, the respondent had become responsible for the management of the deceased’s estate, following the death of her brother a year previous.

It was around this time that several liaisons occurred, during which the testatrix was claimed to have requested that both the Bank of Westminster and the respondent were to act as joint executors, with the responsibility of issuing annuities to close relatives and local named charities.

It was also admitted that throughout the course of events, the deceased knew little or nothing of the extent of her estate, while it was well known to those familiar, that she was also of reasonably low intelligence and lacking any substantive business acumen or financial insight. It was for this reason that the court was reluctant to endorse later alterations involving the removal of the bank and charitable gifts, in lieu of the respondent gaining sole executorship for the estate, along with the power to determine all pecuniary legacies at his discretion.

There was also mention that the deceased had grown concerned that a lack of funds would prevent her from securing her younger sister’s annuity, and so with little objection from the respondent, this bequest was also removed, despite him having sound knowledge as to the actual value of her estate, and abundance of funds to hand.

All of these (and other) inexplicable changes resulted in an estate worth £115,000, which in 1947 was no small sum, especially when it was noted that the deceased had taken the initial decision to leave the residual estate to the respondent, which had since increased from less than £1000 to now over £100,000.

It was this questionable outcome that prompted legal action for the recovery of the deceased’s estate on grounds that the will was void, due to the unwitnessed interactions between the testatrix and the respondent, and the reliance upon his deposition as evidence, however at no point was fraud properly alleged. When heard before a jury, the judge gave direction accordingly, at which point the will was held to be valid and beyond reasonable doubt.

Taken to the Court of Appeal, the Court upheld the previous findings, before the case arriving at the House of Lords. Here emphasis was placed upon the seeming reluctance by the first judge to approach the case with sufficient suspicion, as was traditional in these circumstances. It was also argued that there were numerous reasons for the House to question not the mental fragility of the deceased, but her vulnerability in maters of property, wealth and estate administration.

And so it was, after careful examination of the facts, uniformly decided that both the will and codicil were to be held as invalid, and that referral to the High Court of Justice (Probate Division) on those grounds would be made for the purposes of a resubmission, but with the absence of beneficial rights granted to the respondent.

Key Citations

“[I]f it is a legitimate inference that she thought that the residue was of a measure which might or might not support the increase of an annuity of £40 to £120, then it is clear that she was unaware that she was conferring on him a substantial fortune.”

Hobbs v Knight

English Succession Law

Hobbs v Knight
Image: ‘The Change of Heart’ by Jodie King

Revocation of a will or codicil requires deliberate and often irretrievable action on the part of the testator, however at a time when domestic statute evolved to establish greater certainty, there were still doubts as to exactly what constituted ‘actual’ revocation.

Having drafted a number of wills prior to his passing, the deceased had taken the steps to remove by cutting, his signature from an otherwise intact, and wholly acceptable will. Two later wills were partially executed, however there were no witnesses evidenced, therefore they too were deemed void.

As part of a challenge by the executor, it was argued that the terms of the recently amended Wills Act 1837, namely s.34 which reads:

“…[T]his Act shall not extend to any Will made before the First Day of January One Thousand eight hundred and thirty-eight…and that this Act shall not extend to any Estate per auto vie of any Person who shall die before the First Day of January One thousand eight hundred and eighty-eight.”

Were such as to allow for the intention of the deceased to enforce the validity of the will on grounds that his signature had remained part of the will after the 1 January 1838, and that the formalities now applicable under s.20 of the 1837 Act which reads:

“…[N]o Will or Codicil, or any Part thereof, shall be revoked otherwise than as aforesaid, or by another Will or Codicil executed in manner herein-before required…or by the burning, tearing or otherwise destroying by the Testator, or by some Person in his Presence and by his direction, with the Intention of revoking the same.”

Were peripheral to the actual ‘cutting’ of the will, as opposed to tearing, thus the will was not of itself destroyed nor obliterated, but merely absent of a signature.

Having considered the somewhat elaborate choice of words employed by the executors, it was found by the court that while the use of a blade to surgically remove a signature was dissimilar to the tearing of a will, it did by effect, remove the presence of the testator’s signature, thereby destroying any chance of meeting the terms of s.20 of the 1837 Act.

It was also explained that while s.34 of the Wills Act 1837 did not take effect anytime before the 1 January 1838, any action carried out after that date would by extension, remove previous exemption from its powers, therefore the altered will now fell subject to the requirements contained therein, and was duly held to be revoked.

Key Citations

“[T]he signature of the testator is necessary to the validity of a will; that no will is valid without it, so that it is not only a material part, but an essential part, without which a will cannot exist.”

“[I]t would not be difficult to shew that a will might be revoked by cutting with an instrument as well as by tearing, if a corresponding effect be produced by the one act as by the other.”

“Cutting is a mode of destroying as effectual as tearing, and it appears to me that if tearing a will to this extent be a sufficient destruction of it, the same effect must be attributed to the act of cutting it…”

“I consider the name of the testator to be essential to the existence of a will, and that, if that name be removed, the essential part of the will is removed and the will is destroyed…”