This post has been contributed by Amanda Taylor, University of London Teaching Fellow for Equity and Trusts.
One of the criteria for a valid will is that the testator has understood the will he is going to sign or has already signed.
There are four main issues that have to be verified to conclude if the will is valid:
- Formalities
- Capacity
- Intention
- Undue Influence
Let’s look in more detail at Mental Capacity:
The leading case is Banks v Goodfellow (1870) LR 5 QB 549, which sets out the following requirements:
- The testator needs to have the capacity to understand that he is making a will, and that it will have the effect of carrying out his wishes on death;
- He must be able to understand the extent of the property he is disposing of (though not necessarily recall every item of property);
- He must recall those who have claims on him and understand the nature of those claims so that he can both include and exclude beneficiaries from the will;
- And, the testator should not be suffering from a disorder of the mind.
In October 2023 a case was heard in the High Court concerning a person called Kenneth Grizzle who was illiterate. He had left a will in which the three (now adult) children from his marriage had been excluded from the will. The three children disputed the will on the basis that their father could not read and therefore how was he able to understand what was written in the will. No proof existed that he had had the will read to him and nothing was provided to prove that he understood he had excluded his children from his marriage. Mr Grizzle had never divorced the mother of the three children who were disputing the will, but had lived in his house with his new partner and their two children along with a child of the partner. In his will he left the house to the two children he had with his partner and the child of his partner, all of whom lived with him, and he gave his partner the right to remain in the house for life.
The judge ruled that the three children from the marriage and the two children from his relationship with his partner should share in the property. The judge did not allow his partner’s child to inherit anything.
This shows that even if one presumes a will is valid there might be a claim from those who have been disinherited.
This is a cautionary tale to all students. In the Equity and Trusts module we deal with many wills. We look at the basics of the formalities but it’s important to realise there is far more to making the will valid. Without a valid will one runs the risk of dying intestate which, of course, may have far-reaching consequences and be completely different to the wishes of the testator.
Nicely written but feel incomplete without the discussion about other three issue for a will to be a valid will.
It would have been a good idea if the will while hiding names should be here disclosed for learning. Anyway a good example but I fee that may be there a different judgment for different judges.
Dear Sir/ Ma’m,
I am providing following comments on this blog post in reference to the law on succession and inheritance to the property applied in India. The reply to the blog post is :
Hindu law does not distinguish between a child born within the wedlock and a child who is born out of the wedlock, i.e. an illegitimate child, in case of conferring rights over the property of their parents. There are two modes of devolution of property to a Hindu child, either by inheritance or by succession. In Revanasidappa v. Mallikarjun ,Court stated that an illegitimate child is entitled to inherit both ancestral and self-acquired property of his parents in the same manner as a legitimate child. Court stated at para 26 of its judgment:
“On a careful reading of Section 16 (3) of the Act we are of the view that the amended Section postulates that such children would not be entitled to any rights in the property of any person who is not his parent if he was not entitled to them, by virtue of his illegitimacy, before the passing of the amendment. However, the said prohibition does not apply to the property of his parents. Clauses (1) and (2) of Section 16 expressly declare that such children shall be legitimate. If they have been declared legitimate, then they cannot be discriminated against and they will be at par with other legitimate children, and be entitled to all the rights in the property of their parents, both self-acquired and ancestral. The prohibition contained in Section 16(3) will apply to such children with respect to property of any person other than their parents.”
Court further states:
The Court has to remember that relationship between the parents may not be sanctioned by law but the birth of a child in such relationship has to be viewed independently of the relationship of the parents. A child born in such relationship is innocent and is entitled to all the rights which are given to other children born in valid marriage. This is the crux of the amendment in Section 16(3).
The same view is followed later in Sri Marigowda v. Sri Lakshmamma, AIR 2013 SC, Revansidappa v. Mallikarjuna, (2011) 11 SCC. Further, section 3 of the Transfer of Property ACt 1882 requires that every instrument of transfer of property must be attested by at least two witnesses. So any instrument like a testament (will) must bee attested by two witnesses who sees the execution of the instrument and affirms about the execution before the Court of law. Thus, in Indian law the legitimacy of child is not a rider to their inheritance of property either ancestral or self-acquired.
In this case, the Hon’ble Court granted succession and inheritance rights to the property of the husband to the children of the husband and the two children born out of the newly constituted wedlock from the second marriage of the husband. However, the Court declined inheritance rights for the property to the child/children who were begotten from the previous marriage of the second wife. If the Indian law is made applicable to the facts and circumstances stated in this blog , following persons would be entitled for the inheritance rights, i.e.
1. the children from the husband’s first marriage,
2. the children from the second marriage of the husband and
3. the children begotten out of the previous wedlock of the second wife of the husband. This is for the reason that section 16 of the Hindu Marriage Act 1955 confers equal rights for inheritance and succession to both the legitimate and illegitimate children.