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    Revocation: testators: wills: testamentary capacity: validity of will: grant of probate


    On the evidence, the deceased did not have sufficient testamentary capacity at the time of making her second will.


    The claimants (C) sought revocation of the grant of probate to a will of the deceased (D) and an order for the grant of probate to D’s previous will.  D had made a will in 1993 providing that upon her death her estate should be divided equally between her five children.   In 2002 she made another will that left her estate to only three of her children, the defendants (X), and specifically excluded the remaining two children, who were C.  C argued that D had lacked sufficient testamentary capacity at the time of making the 2002 will because the will was irrational on its face as the statement that she was leaving C out of her will was odd, and because a medical report showed that upon her admission to hospital shortly after making the 2003 will she performed poorly in certain cognitive tests.


    HELD: While the burden of proof was on X to establish the validity of the will, as they had played no part in the proceedings, it was right that the court look at the evidence.  It could not be said that the 2002 will was rational on its face given the statement of exclusion regarding C without any reason as to the exclusion.  On the evidence, it was clear that D, following a fall prior to the hospital admission, had become confused and had changed her will at a time when she did not recognise her daughters.  No reasons had been provided by X to suggest they had a stronger moral claim to the estate.  D had lacked testamentary capacity when she made the 2002 will.   The 2002 will was revoked and probate was granted to the 1993 will.


    Application granted.


    Fuller & Ors v Fuller (2005)


    Ch D (Peter Smith) 8/2/2005


    “Lawtel”: 14.2.05