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Wills, probate and administration

Intestacy – failure of gift

A purported transfer of a share by the deceased who died intestate ‘fell so far short of the formalities’ that the gift failed as imperfect. 


A deceased London accountant (D) incorporated limited liability companies to hide his financial affairs, often using aliases.

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Wills – testamentary capacity; mutual wills and rectification

It is an established principle that a testator (T) does not require testamentary capacity at the time he executes his will where he knew he was executing a will for which he had previously given instructions. An attempt by a recent claimant to overturn this rule was rejected, and the court held that a distinction is to be drawn between testamentary capacity and knowledge and approval. 


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Succession – mutual wills

Mutual wills are made by at least two people, usually in substantially the same terms and conferring the same benefits to each other. They are preceded by an agreement, effectively a contract, to make those wills and not to revoke them without the other’s consent. A common intention was not sufficient. The agreement can be oral or written but must be incorporated into the will or proved by clear and satisfactory evidence.

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Wills – intention

A will that was hand-written in India in Punjabi script by a deed writer, bore T’s signature and was witnessed and sufficient evidence was produced as to the will’s instructions and contents, was valid. T had expressly confirmed to a truthful and accurate witness that he was giving the instructions of his own free will and not under any threats or pressure by a third party.

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Wills – charitable gifts

In this case, T left her residuary estate worth around £449,000 to the Ancient Catholic Church known as the Church of the Good Shepherd. But there was no existing trustee on T’s death. After an early, successful period in the Church, by the time of T’s death there were just four members. After she died, meetings ceased and the other members left.

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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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