Of testamentary capacity
Consideration of testamentary capacity almost inevitably starts with citation of a passage from the judgment of Cockburn CJ in Banks v. Goodfellow (1869-70) LR 5 QB 549 at 565. In the course of a long (for those days) judgment that surveys the essence of mental illness, Roman law, civil law and the law of the United States, the judge said this,
- “It is essential to the exercise of such a power (to make a will) that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, 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 out a disposal of it which, if the mind had been sound, would not have been made.”
In Timbury v Coffee [1941] HCA 22 Dixon J (as he then was) said at p 283
...the jury's finding in relation to the will of 22nd October 1938 should be upheld upon the simple ground that the jury was right in not being reasonably satisfied, upon the proofs offered, that at the time when the testator made the will he was of testamentary capacity. "Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realize the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner" (per Hood J., In the Will of Wilson[6]). "If a will rational on the face of it is shown to have been executed and attested in the manner prescribed by law, it is presumed, in the absence of any evidence to the contrary, that it was made by a person of competent understanding. But if there are circumstances in evidence which counterbalance that presumption, the decree of the court must be against its validity, unless the evidence on the whole is sufficient to establish affirmatively that the testator was of sound mind when he executed it" (per Cresswell J., Symes v. Green[7])—Cf. per Holroyd J., In the Will of Key[8]. "In the end the tribunal—the court or jury—must be able, affirmatively, on a review of the whole evidence, to declare itself satisfied of the testator's competence at the time of the execution of the will (Smith v. Tebbitt4(1867) L.R. 1 P. & D. 398, at p. 436.; Sutton v. Sadler5(1857) [1857] EngR 738; 3 C.B. (N.S.) 87, at p. 97 [140 E.R. 671, at p. 675].)" (per Rich J., Landers v. Landers[11]).
The full judgment of Cockburn CJ is worth reading, if for no other reason than to read the citation of the statement of Chancellor Kent in Van Alst v. Hunter that:
- “It is one of the painful consequences of extreme old age that it ceases to excite interest, and is apt to be left solitary and neglected. The control which the law gives to a man over the disposal of his property is one of the most efficient means which he has in protracted life to command the attentions due to his infirmities.”
Those words, spoken by a judge of the Court of Chancery of New York in 1821 show that people as much then as now feared neglect and loneliness in their old age. The manipulation by the elderly of possible inheritance is, of course, the stuff of many a Victorian melodrama. Today, perhaps, the concerns are more focussed on exploitation of the elderly, but still the important point is that the (human) right of an owner of property to dispose of it upon his death according to his will should not be lightly disturbed.
Taken from an article by Simon Edwards 39 Essex Street March 2014