Testamentary capacity (Sound mind & Unsound mind) PDF

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Testamentary Capacity Testamentary capacity refers to person’s full sense and mental sanity to have confirmed and signed the Will after understanding what his assets comprised and what he is doing by making a Will.  He understands in full mental capacity who he is naming the assets to and how are ...

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Testamentary capacity refers to person’s full sense and mental sanity to have confirmed and signed the Will after understanding what his assets comprised and what he is doing by making a Will. He understands in full mental capacity who he is naming the assets to and how are they related to him and what repercussions it may have later. Testamentary capacity is the legal status of being capable of executing a Will. In Banks v. Goodfellow, a commonly cited English case, John Banks, the testator clearly suffered from a chronic and serious mental disorder but was deemed capable with respect to the execution of his Will because his delusions did not affect the distribution of his assets. This judgment remains the test in most common law jurisdictions today. It appears that Banks- competent testator must possess a ‘sound and disposing mind and memory’. That requires four criteria to be satisfied. The Banks v. Goodfellow Criteria: o Understanding of the nature of the act (Will making) and its effects The testator must understand the nature of the business in which he is engaged. Thus he must be aware that he is engaged in a testamentary act, i.e. expressing wishes- normally concerning the disposition of property – that will take effect on his death. It is a broad understanding that is required of the testator: he need not view the will ‘with the eye of a lawyer’. o Understand the extent of the property of which he is disposing The testator must have a recollection of the property he means to dispose of. It is a general awareness that is required: the testator need not recollect every item of his property. Waters v Waters: a case concerning the lengthy will of a wealthy but illiterate testator. Coleridge J stated that a specific and accurate knowledge of every atom of his property was not required of the testator but that he ought to know generally the state of his property and what it consists of. o The testator must recollect the persons who are the objects of his bounty. Thus, the testator must at least be aware of the existence of persons who might be considered to have a moral claim on his estate – whether relatives or friends – even if he chooses not to benefit them. Harwood v Baker: the testator appears to have suffered a stroke after visiting the Bank of England. A few days later he executed a will shortly before he died in which he left all his property to his wife, thus excluding a number of relatives. This will was held to be invalid because the testator, in the opinion of the court, was too ill to give sufficient consideration to the potential claims of his relatives. Erskine J stated that the question before the court was whether the testator was capable of recollecting who were his relatives, of understanding ‘their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property’. o The testator must have a recollection of the manner in which the property is to be distributed between the objects of his bounty. It normally refers to the division of the testator’s estate: he must be broadly aware of how he has shared out his estate. That may require an understanding of the closeness of his ties with potential beneficiaries and the nature of their claims. Boughton v Knight: Hannen J stated that apart from the need to recall ‘fitting

objects of the testator’s bounty’, a testator had to have an understanding to comprehend their relationship to himself and their claim upon him. Mental Capacity: Sound mind/unsound mind Sound mind (section 3 of Wills Act) Banks v Goodfellow Testator has testamentary capacity if he understands the extent of the property he is disposing, the effects of the act of disposal and the claims upon him; he does not suffer from insane delusions and disorder of the mind. Tho Yow Pew v Chua Kooi Hean The Plaintiffs in this case were the elder and younger brother of Dr. Tho (deceased), who were the executors and trustees of the will applied to the High Court by way of petition for a grant of probate of the said will. The D who was the wife of the deceased however then entered a caveat in order to prevent the grant of probate to the P without the D being given notice. P’s claim dismissed with cost and D’s counterclaim allowed with cost. Firstly, the burden of proving the deceased had the requisite testamentary capacity laid with the parties propounding the will, which were the P in this instance. Secondly, the deceased suffered from nose cancer and was heavily dependent on a steroid drug called ‘dexamethasone’ to obtain relief from its pains and discomforts. Such drug can give rise to several physical and psychiatric side effects. There is also doubt that the deceased who experienced weakness of his limbs and muscles with reduced motor function could have typed the will in question. Thirdly, the P did not impress as having done what they did for the welfare and interest of the deceased. On the other hand, the D impressed as being a truthful witness. Her evidence was accepted as being the true version of the events that transpired. It was evident that the P had not satisfactorily discharged the suspicion raised. The love of the deceased to the D cannot be denied by the conversation of the deceased with her daughter however the psychiatric problem that he suffered as the side effect of the drug taken had made him to show the contravention. The statements given by the witnesses of the P also doubtful, thus it is concluded that the will was invalid and the probate should not be granted. Sethambal Doraiappah & Anor v Krishnavani Muniandy The deceased/testator left behind a wife and young child of about four months at the time of his death. He had died of bone cancer. He purportedly made his will three days prior to his death. In the will he named his mother and brother (the 1st and 2nd appellants respectively) as executors and bequeathed his house to his mother and all moneys in his Employment Provident Fund ('EPF') and insurance policies to his child. The respondent was the sole beneficiary under the general legacy but she did not receive anything as there was nothing for distribution under the general legacy. The appellants petitioned for probate at the High Court and the respondent filed two caveats. The respondent also filed a civil suit against the appellants praying for a declaration that the will was void ab initio. At the hearing of the trial, the learned judge concluded that the appellants failed to remove the suspicious circumstances

surrounding the making of the will and also failed to prove the testamentary capacity of the deceased. The learned judge accordingly dismissed the appellants' probate petition and allowed the respondent's claim with costs. Hence, the appellants' instant appeal. The Court of Appeal held that the burden is on the propounder of the will to establish the testamentary capacity and to dispel any suspicious circumstances surrounding the making of the will. The fact that the house, which was the only substantial property left by the deceased, was given to the mother was not suspicious as it was his mother who had paid the deposit for the house. Besides, the solicitor, who had no personal interest also gave evidence that the deceased had told him that he wanted to leave the house to his mother in view of deposit paid by her. It is settled law that very slight testamentary capacity is required for the making of a will. It need not be proved that a testator was in a perfect state of health or that his mind was so clear as to enable him to give complicated instructions. It is sufficient if it is proved that he was able to give the outlines of the manner in which his estate was to be disposed of and that he was able to understand that his instructions to his lawyer in the main had been complied with. Lee Ing chin v Gan yoke chin Party who challenges testamentary capacity has the burden of proof, ill health or imperfect memory does not mean a lack of T capacity. Dr Shanmuganathan v Periasamy Sithambaram Pillai It was emphasized that where there are suspicious circumstances lurking behind the execution of the will, the onus is on the party propounding the will, to remove, by way of explanations such suspicious circumstances. A circumstance would be 'suspicious' when it is not normal or is not normally expected in a normal situation or is not expected of a normal person. Udham Singh v Indar Kaur It is trite law that the burden of proving the deceased had the requisite testamentary capacity whilst executing the will lies with the party propounding the will. Tyrrell v Painton The propounder must prove affirmatively that the testator knew and approved of the contents of the document. Chee Mu Lin Muriel v Chee Ka Lin Caroline The Singapore Court of Appeal explained that the suspicious circumstances are not confined to circumstances pertaining to the preparation and execution of the will, but also to "events subsequent to the execution of the will." Lim Kang Hai & Ors v Lim Chik Lock The basic legal requirements for validity are that people are mentally capable of understanding what they are doing when they make their will and that what is in the will truly reflects what they freely wish to be done with their estate on their death. Unsound mind

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Person of unsound mind include defective persons defined under Mental Disorders Act 1952. Generally, it includes a person who has been certified and detained in a mental hospital. It includes a person suffering from severe sub-normality which is a state of arrested or incomplete development of mind which includes sub-normality of intelligence and is of such a nature or degree that the patient is incapable of guarding himself against serious exploitation, or will be so incapable when of an age to do so. The burden of proof varies when the person is of unsound mind and if this is in the evidence, the burden of proof is on the person who claims that he made the will during a lucid interval by executing it. The will is invalid if at the time of making the will a testator was through disease, so deficient in memory that he was oblivious to the claim of his relatives and if that forgetfulness was an inducing cause of his choosing others to be his legatees.

The rule in Parker v Felgate The testatrix, a young woman in her late twenties, contracted Bright’s disease. She consulted her solicitor and gave him instructions to draft a will in which she gave the bulk of her estate to a children’s hospital in preference to relatives. Before the will could be executed, the testatrix lapsed into a partial coma from which she was occasionally roused. On one such occasion her doctor rustled the will in front of her face and said, ‘this is your will’. It was then signed on her behalf with her consent. The court found that the testatrix did not remember and understand the instructions given to the solicitor and that she could not have understood the clauses in the will. Nevertheless, the will was upheld since she understood that she was engaged in executing the will for which she had given instructions. Re Ng Toh Piew The testator before making the first will in 1947 was examined by a doctor and it was clear that he was then in a fit state of mind and memory to dispose of his estate. In 1949 when he made a second will he was extremely ill and failed to provide for his son, as he had done in the earlier will. He told one of the witnesses that he had no son. The court pronounced his second will invalid. Angullia v Rahimaboo The testator had been pronounced insane on four previous occasions. During a lucid interval made a will and codicil giving most of his estate to charity and died three days later. The doctor and solicitor who attested the last will and codicil both deposed to the fact that the testator although physically weak and mentally dull at the time, appeared to be of sound mind, memory and understanding. The testator had died from diabetic attack. The court held that on the evidence as a whole, the will and codicil had been made at a lucid interval and should be pronounced for. Battan Singh v Amirchand The testator made a will in which he declared that he had no relatives; he left his property to 2 friends. He was in the last stages of tuberculosis and died the following day. His statement was incorrect: he had four nephews to whom he had left his property in a will made only five weeks earlier. The privy council found against the last will since it was the product of a man

so enfeebled by disease as to be without sound mind or memory at the time of execution and that the disposition of his property under it was the outcome of the delusion touching his nephews’ existence....