Banks v Goodfellow (1870)

English Succession Law

Banks v Goodfellow
‘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, and so 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 had argued that:

“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 had 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…”

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

“[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…”

All of which 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 so with notions of jury misdirection quickly dismissed, the court validated the will while holding that:

“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.”

 

Re White (Deceased) (1988)

English Succession Law

Re White (Deceased)
‘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.

Executors, Gifts and Trustees within English Succession Law

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Executors, Gifts and Trustees in Succession Law
Image: ‘Reading the Will’ by Frederick William Elwell

Executors, Gifts and Trustees in Succession Law