The Practical Lawyer

Wills, probate and administration

Succession – testamentary capacity

The long-held rule in Parker (1833), that a testator did not require testamentary capacity when he executed his will if he understood the will was one for which he had given prior instructions or had subsequent knowledge and approval of the will, remains good law.

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Wills – testamentary capacity

Traditional principles established in case law that have stood the test of time have not prevented the failure to secure contemporaneous evidence at particular stages in the will making process.

This helpful article sets out the existing rules (and not much has changed since Banks), rationale and best practice on issues concerning testamentary capacity.

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Bank accounts – resulting trusts

Joint bank accounts frequently cause problems on death and a recent case clarified the correct legal principles for such cases. The deceased (D) purchased her council house with help from one of her sons and sold it in 2006. Her cheque for the sale proceeds was paid into a joint account opened in her and another son’s (C) name, D not having her own bank account.

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Wills – mutual wills; testamentary capacity

The courts have set out useful principles relevant in cases of testamentary capacity in the context of wills in the light of recent cases on the issue. In a recent case, T had testamentary capacity at the time of giving instructions for the will, but not when he executed it. But when he executed the will he believed it gave effect to his previous instructions – as it did, and thus reflected his testamentary wishes.

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Wills – testamentary capacity

Bereavement can produce a mental disorder sufficient to deprive the sufferer of sufficient testamentary capacity. In a recent case, T left the bulk of his estate to his sons, leaving a small share each to his daughters. His wife of 65 years died and six days later he made a new will increasing his daughters’ shares. The evidence was that his daughters had urged him to do so to be fair to all four children.

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Wills – testamentary capacity; revocation

The requisite testamentary capacity for the revocation of a will is the same as that required for making a will. Where a testator’s revocation of his will followed delusions caused by a mental disease that affected his emotions, the court held that the revocation was invalid for lack of capacity.

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Wills – removal of executors

The courts have recently addressed the approaches taken to their discretion under s50 AJA to terminate the appointment of a PR and or appoint a substitute. In a recent case, the court re-stated the traditional approach in Letterstedt [1884] regarding the removal of trustees, making it clear that the principles also apply to executors.

In a further recent case, the deceased’s son complained that the executors, his sisters, had undervalued the properties before allocating them to themselves as part of their shares of the residue. He also complained that they had failed to keep him informed as to progress.

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EPAs – recent judgments

The Office of the Public Guardian has summarised recent Court of Protection judgments involving EPAs under the MCA. The cases include the following decisions:

Where a witness had not stated her addresses as required, the EPA was still procedurally valid.

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Inheritance tax – nil rate band

Drafting wills frequently involves considerations of the NRB and this helpful article considers the issue, including circumstances where the NRB is non-transferable and where it can be wasted.

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Wills – proprietary estoppel

In cases of testamentary proprietary estoppel, the courts have applied the ‘clear and unequivocal’ test. The alternative formula ‘clear enough’ has not yet overtaken the pre-existing test, although it has been used.

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