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Saturday 31 August 2013

ESSENTIAL REQUIREMENTS OF A VALID WILLS



                                                                   Introduction
For a Will to be legally binding a number of requirements must be met. The requirements are complex and legal advice should always be sought before making a Will. The reason for this is that if the requirements are not met the Will is likely to be rendered invalid, which could result in the deceased’s assets being distributed other that in accordance with his or her wishes.
This chapter does not intend to be substitute for legal advice but rather sets out what the essential requirements of a legally binding will are : purposefully this chapter is to limit the question of testamentary capacity to the matter of the mind of the testator; as certain the types or quality of mind that can legally dispose of property by Will, the period during the testamentary process when the mind should possess the quality thus ascertained; the behavioral pattern that can sustain the quality and the manner in which this can be property put and received by the court and the effect of unsoundness of mind on dispositions made.

            Testamentary Capacity
Testamentary capacity refers to having the mental competency to execute a Will at the time the Will was signed and witnessed. To have testamentary capacity the author of the must understand the nature of making on Will, have a general idea of what he / she possesses, and know who are members of the immediate family or other “natural objects of his/her bounty.[1]
Testamentary capacity simpliciter connotes many things to many people. Simply put, it means the capacity to make a testament that is a Will. Statutes may delimit the extent of capacity.[2] For instance, section 4(1) Kaduna state Wills law 1990 state:
“It shall be lawful for every person to bequeath or dispose of by his Will executed in accordance with the provision of this edict all property to, which he is entitled either in law or in equity at the time of his death”.[3]

In Oyo State, a person who before his death was subject to Islamic law is denied testamentary capacity under the Wills law of the State.[4]
Statutes can extent capacity where none would have been available. A seaman or soldier in Actual military service may make a Will even though he is a minor, and such Will, need not comply with the rigorous formalities prescribed by law.[5]
The general law that is common law and equity may affect the testamentary capacity of the testator. He lacks capacity to dispose of his property at the time when he does not possess sound disposing mind or where he has been coerced and overpowered to make disposition he would not otherwise have made.
It is obvious from the above that the term testamentary capacity is generic and appears to cover general capacity to make a Will, so, if the testator lacks capacity of his mind or other infirmly or for non-compliance with the law under which his Will is made, he is described simpliciter as not possessing necessary testamentary capacity.[6]
No wonder therefore, writers, the courts and Judges use the term testamentary capacity indiscriminately.[7] It has however been suggested that aside from testamentary capacity, there is also concept of testamentary power.[8] The logic in this suggestion seems to be that to all intents and purposes you may have full testamentary capacity but because the law restricts your ability to dispose of all or some of your property. You may therefore lack the necessary testamentary capacity.
For clarity and case of reference, the generic term testamentary capacity may be linked with the specific cause of capacity or incapacity. For instance, a testator may be said to lack testamentary capacity because at the time he made his Will he did not have requisite memory and understanding otherwise known as sound disposing mind, or that he lacked capacity because he purported to dispose property subject to customary law which he could not touch by law.[9]
Until fairly recently, there was a complete freedom of testamentary power in Nigeria. In other words, a testator was absolutely free to dispose of all of his property in any manner he wished. This had been criticized in several quarters on many grounds. It was said that an irresponsible testator or one subject to wrong pressures or influences could disinherit all his dependents and relations in favour of strangers. The Muslims are particularly critical of the fact that this power enabled a Muslim to dispose of property in his will in a manner contrary to Islamic law.[10] There is some validity in the argument that the courts should have discretion to vary the dispositions in a will in order to ameliorate any cases of blatant injustice or neglect of persons towards whom the testator had moral or legal responsibility.
            Sound Disposing Mind
Sound Disposing Mind refers to the mental ability to understand in general what one possesses and the persons who are the “natural objects of bounty” (wife and / or children), at the time of making a will.[11] For a testator to have sound disposing mind, three things must exist at one and the same time namely:
i.          The testator must understand that he is giving his property to one or more objects of his regard.
ii.         He must understand and recollect the extent of his property.
Iii.        He must also understand the nature and extent of the claim upon him both of those whom he is including in his Will and those who he is excluding from his Will.[12]
The testator must understand the nature of the Act he is performing and its effect. No disorder of mind shall influence his Will in disposing of his property and bring about a disposal of which if the mind had been sound would not have been made.[13]
The question then is, what situation can deprive a testator of a sound disposing mind? It does seem that if the human instincts and affections or the moral sense become perverted by mental disease; it insane suspicion or aversion takes the place of natural affection; if reason and judgement are lost and the mind becomes prone to insane delusion calculated to interfere with and disturb its functions and lead to testamentary dispositions due only to their baneful influence. In any of these cases or a combination of any them, the testator loses capacity and does not possess the power to dispose of his property by Will. Indeed any Will made under these conditions ought not to stand.[14]
A simple statement of the essentials of sound disposing mind can be found in the very early case of Morquess v. Winchester[15] therein, it was stated that:
“It is not sufficient that the testator be of memory when he makes his Will to answer familiar and unusual question but he ought to have a disposing memory so that he is able to make a disposition of his land with understanding and reason”.

It is against the criteria described above that a Will must be upheld or dismissed if it was alleged that the maker lacked sound disposing mind.
In Banks v. Good fellow, the testator suffered from two delusions which disturbed his mind;
i.          that he was pursued by spirits, and
ii.         that a man, since dead, came personally to molest him.
But neither of these delusions had or could have had any influence upon him in disposing of his property. The jury found and their findings were supported by the court, that irrespective of the questions of these dormant delusions, the testator was in possession of his faculties when the Will was executed. It did not matter that he did benefit his heir at law who would have been the objects of his bounty had he died intestate. The Will was held to be rational regardless, even though it was made in favour of a niece who lived with him and who was the object of his regard.
The case of Federal Administrator-General v. Johnson[16] is illustrative of how the courts go about deciding available Acts sometimes quite contradictory, which Acts sustain capacity and which do not.
The testator was about 70 years old who, at the maternal time he executed his Will dated 16th July, 1959, was very ill to chronic condition of retention of urine which poisoned his stream.
The testator attended. To the 16th of July, 1959. The doctor who saw him was of the opinion that he should be executed. But the testator refused admission on that date but instead executed his Will.
He came back from the hospital for admission on the 20th July and signed a consent form for the operation to be performed on his
Plaintiff was named as executor in the Will. The defendants were two of the testator’s children who opposed the grant of probate on the grounds, inter alia, that the testator lacked testamentary capacity that is he was not of sound mind, memory and understanding at the time he executed his Will.
At the trial, the Will was tendered and the attesting witnesses gave evidence that they were required by the testator to witness the execution of his Will, that he executed the Will in their presence and in the presence of each other and that thereafter they signed in turn. They deposed to the fact that at the time of execution, the testator was quite normal. He spoke to them as he usually did and that as far as they were concerned there appeared to be nothing wrong with his mental condition.
For the defense, the medical doctor who examined and admitted the testator on 20th July, 1959 testifies. He thought that the testator was rather serile for his age. The witness under courses-examination could not say for sure whether he was in a position to make a Will at the time he was said to have made the Will, but that his judgment might not be accurate. The witness conceded that the patient / testator spoke to the doctor / witnesses himself normally and made his complaint himself. It was submitted for the defense;
i)          That the 70 years old testator was very ill in consequence of chronic retention of urine which has poisoned his blood and this condition could have impaired his reasoning.
ii)         That his reasoning could have been impaired because out of four children only one of them a daughter was provided for under the Will.
The court held that the testator has necessary testamentary capacity. The reasoning of the court was impeachable. He refused admission on the 16th of July, and executed his Will on the someday, he later went back to the hospital on the 20th, signed the consent form, complained about his ailment personally to the doctor. The court conceded that the testator’s physical condition deteriorate considerably but capacity in the contest of Will only require that the testator was able to understand the nature of the Act he was performing an appreciated the effect of the exercise of such Acts. The court also conceded that although he did not make any bequests in favour of his sons, he made adequate provision in the Will for the education of his grand children and grandchildren.
Inconsistent conduct of an old man, discrepancies in his signature and the initials on the Will and disinheriting his eldest son may not be sufficient to sustain an allegation of lack of testamentary capacity
            When Necessary
The primary and the ideal time for the testator to possess sound disposing mind is firstly, when he gave instructions and secondly when he executed the Will. A consistent Patten of life and behavior must exist so that any reasonable man Will readily infer that the testator has been a rational man doing what rational people generally do.
Problem Will however set in if the law should insist that animus testandi should be present at the two crucial times. However, if it be shown that the testator had sound disposing mind when instructions were given, and that the Will was drawn up in accordance with those instruction, it would be sufficient that when he executed the Will, the testator was being asked to execute as his Will, a document drawn up in pursuance of those instructions. The authority usually cited for the rule is the case of Perara v. Perara.[17] This rule may help those whose conditions of mind or body might have deteriorated since the possession of capacity, but who are still well enough to execute a document emanating from instructions earlier given.
It does seem also that as long as the testator had the necessary mind when he gave his instructions for his Will, the Will would, nevertheless, be valid, even though the testator is unable later to remember instructions previously given and his signature has to be affixed by another person kin his presence and at his direction. Impetus was given to this rule by the case Parker v. Felgate.[18] Testator executed her Will on 29th August, 1882 and died on 2nd September, 1882. The 28 year old lady becomes ill early in 1882 with Brights disease. She consulted her solicitor, a Mr. Parker as to making of her Will. Mr. Parker made copious notes, including alterations and amendments to earlier instructions. Testator left five hundred pounds, two hundred and fifty pounds to her brother and the residue of her estate to children’s Hospital in Great Ormong street, London Previously; she had advanced moneys to her father and mother to prevent their bankrupt. She directed that if the charity was unable to take, the residue should be distributed amongst her next of kin.
Testator became very ill before the Will was finally prepared. This was compounded by the fact that her solicitor was away at his point in time on holiday but his partner prepared a Will from instructions derived from conversation with Mr. Parker and from a draft Will and draft bill of cost.
Testator went into coma on the 26th. One of the doctors attending to her testified that the testator was capable of being roused and could speak and did talk about the Will. The coma went on the increase but still she could be roused to answer questions.
On the day the Will was to be executed, testator opened her eyes, put out her hand and smiled when another doctor rustled the Will kin front of her face to rouse her. The doctor said:
“This is your Will do you wish this lady (a Mrs. Fleck) to sign it “and she replied” Yes”

Three people present testified to corroborate the doctor’s evidence. Held if a person has given instructions to a solicitor to make a Will and the solicitor prepared it in accordance with those instructions all that is necessary to make it a good Will if execute by the testator is that he should be able to think far.
I gave my solicitors instructions to prepare a Will making a certain disposition of my property. I have no doubt that he has given effect to my intention and I accept the document which is put before me as carrying it out.
As elastic and sensible as this rule is, it may be abused by unscrupulous people. No wonder then that the privy council in the case of Singh v. Armichand,[19] placed a caution on the rule in Parker v. Felgate by interpolating a gloss thereto. The Supreme Court of Fiji held that the Will was the product of a man so enfeebled by disease as to be without sound mind and memory at the time of execution and the disposition of his property under it was the of delusion touching his nephews’ existence and the Will was therefore invalid. Further, it was decided that the principal enunciated in Parker v. Felgate[20] should be applied with the greatest caution and reserve when testator’ does not himself give instructions to the solicitor who testator’ does not himself give instructions to the solicitor who draws the Will but to a lay intermediary who repeats them to the solicitor. The court, before making any presumption in favour of validity, ought to be strictly satisfied that there is no ground for suspicion and that the instructions given to the intermediary were unambiguous, clearly understood, faithfully reported by him and rightly apprehended by the solicitor.
            Knowledge and Approval
The gloss put on Parker v. Felgate by Singh v. Amirchand accentuates the requirement that the testator must have knowledge and approval of the contents of his Will. An intermediary who is not a lawyer may well ‘doctor’ the Will which will not thereby represent the wishes and approval of the testator.
The House of Lords in Wintte v. Nye[21] Suggest as two significant features of the rule-knowledge and approval; thus:
(i)         That there are circumstances e.g. professional relationship kin which English Law places an exceptionally heavy burden on a party to establish knowledge and approval.
(ii)        In cases where the burden is imposed, the court is to be vigilant and jealous in scrutinizing all the circumstances.
The rule is evidential and not a rule of substantive law. It is only called in evidence when circumstances dictate. Indeed, the head note in the Nye’s case suggests that the rule (knowledge and approval) is part of the law of evidence.
Ordinary, the proof of due execution and that of sound disposing mind are sufficient to sustain knowledge and approval.[22] The need to go further may arise, as for instance, if the person who prepared the Will is the sole and substantial beneficiary, in which case the court requires further affirmative evidence. Affirmative evidence of knowledge and approval is also required where the testator is deaf and dumb or blind.
Scar man J. in the Estate of Fuld (Deceased) No. 3 says of the rule:
“In my opinion, the whole point of the rules is evidential; it is concerned with the approach required of the court to the evidence submitted for its consideration. In the ordinary case, proof of testamentary capacity and due execution suffice to establish knowledge and approval but in certain circumstance, the court is to require further affirmative evidence. The character of the rule as evidential emerges clearly from the speeches of viscount Simmonds and Lord Reid (1959) I All E.R.552 at p. 557, (viscout Simmonds) and pp. 560 and 561 (Lord Reid). Both their Lordships relied strongly on the classical statement of the rule to be found in the Judgment of Baron parles in Barry v. Butlins (1838) 2 moo. P.C.C. (480)”[23]

            Effect of Supervising Insanity
A Will when the testator has sound supervising mind is not revoked or otherwise affected by supervening insanity or subsequent incapacity. This is supported by the case of in the Goods of Crandon, where, on 20th July, 1897 Miss Crandon made a will and appointed her sister sole executrix. The Wills was prepared by solicitor and was kept by the testator in tin boxes. In 1890, testator became of unsound mind and was confirm in an asylum. The Will was found missing after the testator death. Mr. Justice Barnes held that probate should be given to the draft Will.[24]
            Period of Lucidity
Period of lucidity is a temporary period of sanity: that period of time in which a normally insane or mentally unbalanced person is in control of faculties and can think atonally.[25] In other facilitate the making of a Will, the law set a very low bar as far as testamentary capacity is concerned. The law presumes that a person is competent and it is generally necessary to rebut this presumption with expert medical proof. Mental capacity is a relative thing; a person who is not competent enough to make a contract to buy or sell a real estate or, for example, a complex commercial teases, may be quite competent to make a Will.
In other to make a will it is necessary to be lucid and oriented to one’s surrounding. One needs to have an ability to comprehend the basic concept involved in the making of a will and to understand that he or she is executing a set of instructions for how to dispose of property at death.
The question is how will the law treat the will of a testator known to be insane but which will was purportedly made during a period of lucidity. The test for all times is; had the testator the requisite sound disposing mind at the time the will was made? If the answer is in the affirmative, the will be head to be valid. All it means is that during a period of lucidity, an otherwise incapable testator may legally make a will. This rule of law is supported by the case Cartwright v. Cartwright.[26]
Testator who had been insane for some time started asking for paper, pen and ink with which to write. Her physician did not want her to write or read as any of this acts might aggravate her condition.
Eventually, she was given these materials. She sat down and rote her testament in her own handwriting without the assistance of anyone. She sent away her attendants when she was writing the Will, although they were watching her from the adjoining room.
Indeed one of the attesting witness having described how she request for writing materials went on to state, that she was behaving rather strangely-writing pages, destroying same in the fire grate, walking up and down and muttering to herself until eventually finished what she wrote.
The question is how does one prove lucid interval? Must the period be one hour, two hours, days or week? The court seemed to be of the view that if a rational act was performed unaided, that could be said to be a period of lucidity.
The court in Cartwright’s case, was of the opinion that the testatrix, by writing the Will herself, had most plainly shown she had a full and complete capacity to understand what was the state of her affairs and her relations and to give what was proper in the way she had done she not only formed the plan but also pursued and carried it into execution with property and without assistance.[27]
            Recovery After Incapacity
It is possible for an incapacitated patient to recover wholly or partially from his malady. The question then is what effect if any has such recovery on the Will made during incapacity?
The law is that recovery cannot validate a Will made when the testator had no sound disposing mind. Thomas Trevor C.J. in Arthur v. Bokenham[28] puts the matter succinctly when he says:
“…If a man be non-compose, and not in the right senses at the time of making his Will, though he become a man of understanding and sound judgment and memory, yet the Will is a void. Will by no means made good; because he wanted the disposing power at the time of disposition which was the time of making the Will”[29]

            Presumption of sound Disposing Mind
The law presumes that a testator has had possesses sound disposing mind at the time the Will was made.[30] The court’s altitude in this respect is fair and logical, otherwise the propounded of a Will will always and as a matter of court, have to prove to the court that the testator was of sound mind and not insane when he made the Will and only then will the court grant probate.
However, if the question of the sanity of the testator is in issue and contested, the onus is on the person propounding the will to prove that the testator had sound disposing mind at the time the will was made.[31]
The onus for relying or the presumption is a fairly light one can be discharged by tendering the Will and seeking to show that:
(i)         it is not irrational on its, and
(ii)        it is duly executed.
The onus shifts and those who have put the mind and sanity of the testator in issue will have to adduce evidence in support, otherwise, the Court will grant probate to the Will.
Cress well J. in Sutton v. Sadler declares as follows:
“No doubt, he who propounds a will undertakes to satisfy the court of probate that the testator made its and was of sound and disposing mind. But very-slight proof of this, where the factum is regular, will suffice, and they who impeach the instrument must produce their proof should the actor (the party propounding) choose to rest satisfied with his prima facie case after an issue tendered against him. In this case, the proof has shifted to the impugner, but his case may easily hack again”[32]

His lordship affirms that the result is the same where the party propounding does not rely on the prima facie case, otherwise called the presumption, but gives the whole of his proofs in the first instance. He concluded that the onus, whatever the case, remains on the propounded throughout and the court or jury who have to decide the question in dispute must decide upon the whole of the evidence so given and if he does satisfy them that the Will is valid, they ought not pronounce against it.[33]
Button’s case systematically highlights the mode of proof on the prima facie presumption of sound disposing mind. If indeed a Will is not irrational on the face of it, it is produce before a jury and the execution is proved, and no other evidence is offered, the jury would be property told that they night to find for the Will; and if the party opposing the Will gives some evidence of incompetency, the jury way, nevertheless, if the does not disturb their belief in the competency of the testator, find in favour of the Will and in each case the presumption of competency will prevail.[34]
Like any other presumption, this presumption is mere presumption of law. In other words, it is rebuttable in the sense that when the whole matter is before a jury and evidence given on both sides, they ought not to affirm that a document is the Will of a competent testator unless they believe that it really is so.[35]
            Evidence to Support Evidence of Sound Disposing Mind
We have seen that in matters relating to Wills, the adage he who avers must prove’ does not necessarily apply it is the duty of the propounded of the Will to satisfy the conscience of  the court, that all is well before the court grants probate to the Will.
The evidential onus thus rests initially with the propounded. However anyone who seeks to fault the Will on any grounds will thereafter adduce evidence to sustain his claim. In that case, the onus shifts to the aggrieved person. The propounded may rest his case on the presumption or go further to adduce all evidence at his disposal to disprove the allegation. At the end of the day the court evaluates the totality of the evidence before it and either finds for or against the Will.
The question now is, what sort of evidence must the propounded adduce to impress the court that the testator had sound disposing mind at the time he made the Will? Both oral and documentary evidence is admissible. Statements made by him at the time of making the Will or preparation thereto are relevant and admissible to show that he knew the character of the act he was undertaking. The fact that the Will is in his handwriting is strong in favour of capacity. It has been shown in Cartwright v. Cartwright[36] that the court inferred capacity from the fact that the testatrix wrote the testament in her own handwriting unaided, after asking for writing materials.
The evidence of an attesting witness is also admissible to show capacity, although this has to be corroborated.[37] Evidence of conduct before and after the actual making of the Will is admissible. In the Johnson v. Maja[38], the testator prepared the lengthy Will with its numerous and somewhat complex provision, and he himself initialed each page of the “Will”. He continued in active practice of his profession at the bar for some years after the date of the Will and lived for over six years afterwards, doing what an ordinary person of his age and status did. The testator himself took the Will to a Mr. Wilson, one of his witnesses, and he called in a Mr. Coker, one of his tenants, as the other witness for its execution and attestation.
In the Adebajo’s case, Will was executed on the 25th of June, 1969. On the day he execution and attestation the testator and his lawyer drove to his office, checked the original of the Will with the copy in his possession; went to another part of the office to bring in the two witness who accompanied his to his own office complex.
He told the witnesses that he wanted to execute his Will and want them to act as witnesses. The testator between March and May 1969, carried out certain transaction at the lands Registry in Lagos in respect of the registration of some of properties. Being the owner of a football club be attended football makes around the same period. The testator went to the office between April and June, 1969 though not very regularly as he used to and any time he came, he came unassisted. Being a regular and active member of his church members who case to his house to discuss church activities with him gave evidence which the court believed. He wrote letters which were tendered and certain in evidence to his sister in the U.K. instructing that his Will, should be that his bills should be settled in certain repairs affected on his properties in England.
It was show that 28th June 1969 the day the testator was going to England for treatment, he went to his bankers to transect normal banking business, including the purchase of travellers’ cheques. It is more beneficial in support of capacity to adduce evidence of general habits and course of life because this gives greater weight than evidence of particular acts. In Smith v. Tebbitt[39] the court evaluation the general habits and course of life of the testatrix who believed she was part of the Trinity and that judgment of mankind would be made in her drawing room which she was had lavishly prepares for the occasion. She thought her husband was the devil and that she was a bride of God and was immortal. All these are consistent with religious delusion. And yet she did specific acts which might be consistent with sanity, like buying a vault for herself. The court refused to put much weight on particular acts but rather addressed general pattern of behavious. The test appears to be this has the testator behaved and acted in a manner which ordinary reasonable people act?
It is in order to receive the evidence of a medical practitioner who had attended the testator. Such firsthand testimony is preferable to the hypothesis of a doctor Who had not seen that expert could testify that a set of symptoms may cause loss of memory and concentrated another equally competent medical expert could testify to the contrary. Perhaps, this is why Taylor C.J in the Adebajo’s case refused to be persuaded by the expert evidence of the doctors who gave evidence for the defence[40] this lordship preferred to act on the evidence of the doctor who attended and treated the testator
            DELUSION
Delusion may affect he maid and thereby incapacitate the testator. In other words, a Testator may not possess sound disposing mind as a result of his delusion.
 What is delusion? It has been severally described as follows;
(i)         A belief of facts which no rational person would have believed;[41]
(ii)        A pertinacious adherence to some delusive idea in opposition to plain evidence of its falsity;[42]
(iii)       The belief of things as realities which exist only in the imagination of the patient.[43]
In simple terms, delusion is a belief in the existence of something which no rational person could believe and at same time, it must be shown to be impossible to reason the patient out of the belief.[44]
It is quite possible to retain general capacities, even though one suffers from delusion. A testator may retain sound disposing mind, even though he suffers from one sort of delusion or the other.
There must be a connection between the disposition made and the delusion before the disposition made or the Will can be invalidated. The disposition made or the Will itself may not be affected as long as there is no nexus between the disposition and the delusion.
This proposition will be illustration by two cases:
(i)         Banks v. Good fellow
This case has been amply discussed above under the heading sound disposing mind. Indeed, it is one of the leading cases on testamentary capacity of the mind.[45]
To recapitulate, the testator suffered from two delusions which disturbed his mind:
(a)        that he was purchased by spirits, and
(b)       that a man since dead came personally to mutest him.
As has been shown, neither of these delusions had or could have had any influence upon him in disposing of his property. The court found for the Will because there was no connection between the dispositions made and the delusions which troubled him. The testator was found to be in possession of his faculties when he executed the Will.
(ii)        Smith v. Tebbiltt
 This case has also been mentioned briefly above.[46] It is a case of religious delusion. The testatrix died in 1866, leaving a Will dated 2nd March, 1866. She left various legacies to her sister, Other relations servant and charities.
She left the reside to a Dr. John Smith the elder,, elder, Samuel Smith. April from the residue, she left a legacy of thirty thousand pounds to Samuel Smith and the estate of chairman dean was devised in addition to him for life and then to his two daughters.
The will was contested by Mrs. Sarah Tebbilt, the testatrix’s surviving sister, on the grounds inter alia that the testatrix was not of sound mind, memory and understanding at the time of the alleged execution of her will.
Evidence was admitted to show that the testatrix had told people she had intercourse with the creator who she talked with the same way she talked with people. She called herself the third person in the Trinity. She was the Holy Ghost and Dr. John Simons come of the residuary legatees) was the father. She furnished the drawing rooms for the second coming of Christ on earth to judge the world, to dwell in and that was the reason why she had gone to so great an expense to do up the place. She always maintained that Smith, God the father, knew all she thought and she did. She talked of the work she and Dr. Smith were involved in, for which she said Dr Smith needed money which she provided.
She employed Samuel smith as her secretary and he was living on a salary of four hundred pounds per year. But he did very little works for her. She saw him as one of the devil heads.
Dr. Smith was not a blood relation. He first attended the testatrix professionally in 1832.later,he was receiving her duodena and paying them into her banks Samuel smith was the doctor’s brother.
Sir J.F. Wilde held.
“The conclusion of the court as to the validity of this will must have been made apparent. I think it cannot stand-in cannot reconcile the proved hallucinations of the testatrix in the matter of religion with the action of a sound and healthy mind on the one hand, and other, I find them to be just as a diseased mind is known to engender. I can find no excuse or explanation in her temperament or general character for her absurdities on this special subject”[47]

His Lordship Concluded:
“I find clear fraise of insanity at one time and insane aversions at another –a large fortune ill husband estranged, extravagant benefits on those about her through strangers in blood, a secluded life, and a submission to the will of another, apparently found on the special subject of her hallucinations, for which the external and visible relations of the parties can hardly account. A life with such features is not calculated to rebut the conclusions to be drawn from her proved decisions on the subject of religions”[48]

The court pronounced against the will without any hesitation.
If therefore the mind becomes a prey to insane delusions to interfere with and disturb its functions and to lead to a testamentary disposition due only to their benefit influence as indeed was the case in Tebbilt’s case the obvious conclusion therefore is that condition of testamentary power fails and that a will made under such circumstance ought not to stand.
As has been stress earlier, the existence of a delusion compatible with the retention of the general powers and faculties of the mind will not be sufficient to overthrow the will unless it were such as was calculated to influence the testation in making it.
Curiously enough in the Estate of Barman, Caesar and warmouth v. Bohrmann,[49] the court found as a fact that the testator suffered from delusions, that his delusions affected the disposition made by him, and yet rather than invalidating the testament to it after the court exercised the offending disposition.
In that case the testator made his will on 26th November, 1926, and subsequently executed four codicils the last in 1932. The bequests were quite ordinary ones to relations and charities, The 1932 codicil declared in clause 2 that the gift to charities should be read as if the word “ENGLAND” had been deleted there from and the words: United States of America” substituted therefore. The evidence showed that the testator did not enjoy the best of health and often treated his relations in a harsh manner. He had, however, at all times been a man of exceptional acumen in managing his private affairs which chiefly concerned the investments of his capital in stocks and shares.
In the last years of his life. He was clearly suffered from a delusion that the London city council was acting improperly in order to desire to acquire for hospital purposes. It was found as a fact that the testator was suffering a delusion –that he was a paranoid psychopath- at the time the codicil was in 1932, but that the only testamentary disposition affected thereby was the substitute of the words “United states of America” for “England”.
Held the will and codicils were valid testamentary disposition, except clause 2 of the codicil of 1932 which should be s deleted there from.
This case is principally of interest in that it is first time the court had, in a case of delusional insanity, declared for a testamentary disposition subject to the deletion of the offending clause.
Decision may be supported on the grounds that the testator’s decision was consistent with the retention of general power and faculties of the mind. All the testamentary document appeared normal and reasonable except the offending clause 2 of the 1932 codicil.
Also, all the bequests were well intention and rational and to all allow a clause of the condicil to frustrate the overall intention of testator and deprive beneficiaries of their bounties would not be commendable.
Indeed, Langton J, who decided the case, concedes that he might be over stepping judicial grounds and transgressing into the realm of the legislature. But the excused himself and justified his singular action by saying that it had been practice in the court for many years to delete from instruments or testamentary disposition anything which the court was satisfied was not brought to the knowledge and approval of testator. He concluded:
“I conceive that am doing no more now in declaring for the condicil without 2 than I should be doing in deleting from the condicil something which I believe was never brought to his knowledge and approval as a same balanced Man”[50]






[1] Gerald N. Hill and Kath leen T, Hill. Legal Dictionary: Testamentary Capacity (1981-2005). http:llwww. The freedictionary.com. 27th march 2013
[2] Abayomi, K. Wills law and practice Mbetth and Associate (Nig) Ltd, Lagos (2004) p. 71
[3] Section 4(1) Kaduna State Wills law, 1990
[4] Section 3(1) of the Will law of Oyo State
[5] Section 8 Will Edict Oyo; section 6 Wills Edict Lagos; section 9 Wills law Western Region. And section / Wills Act 1837.
[6] Abayomi K. Op. cit p. 72
[7] Idehen v. Idehen (1991) 6 NINLR (pt-198) 382, 421, Lawal – Osula (1993) 2 NWLR pt 274) 157
[8] Nwabueze B: “power of testamentary Disposition in Bendel and Western State of Nigeria “(1991) J.N.S. vol. l No 1122. G. Abayomi K. op. cit p. 72
[9] Abayomi K. Op. cit p. 72
[10] For a trenchant criticism of uncontrolled freedom of testamentary power: M.O. Adesanya, “A case for the Restraint of Testamentary power in Nigeria vol.5 Nos. 1& 2, Dec.1974, Nig. J. of contemp.
[11] Gerald N. Hill and Kathleen T. Hill op. cit.
[12] Williams on Wills 5th Ed op. cit p 25.
[13] Banks v. Good fellow (1870) L.R.S. QB549 per (oekbburn C) at p. S65.
[14] Supra.
[15] Marquess v Winchester’s case (1958) 6 co. Rep. 23.
[16] (1960) L.L.R. 29)
[17] (1901) A.C.354
[18] (1893) 8P and D 471.
[19] (1948) A. C. 354
[20] (1893) 8 P and D 471.
[21] (1951) 13 WACA 290
[22] (1945) 3 W.W.R.81
[23] 162 E.R. 621
[24] Abayomi K. Op. cit p. 83
[25] Gerald N. Hill and Ktthleen T. Hill op. cit.
[26] (1793) 1 Philim 90; vol. 161E .R. 923.
[27] Abayomi K. op. cit p. 84
[28] 11 Mod Rep 148.
[29] Ibid, at p. 157
[30] Wellesly v. Vere (1841) 2 curt. 917
[31] Sutton v. Sadler (1841) 3 CBNS57; vol. 140 E. R. 671
[32] Sutton v. Sadler (1857) 3 CBNS57; vol. 140E.R671.
[33] Ibid at p. 674
[34] Ibid.
[35] Ibid 1 at p. 676
[36] Supra at pp. 83-84; see also Johnson v. Maga (1951) 13 WACA 29. 100
[37] Booth v. Blundell (1815) 19 ves 494 at p. 504; Howard v. Braith wait (1812) 1 ves & B 202.
[38] (1951) 13 WACA 290.
[39] (1867) L.R.I.P & D 397
[40] (1973) 4 Sc 22.
[41] Persir john Nicoll in Dew v. Clerk (1826)3 Add .79
[42] Ibid.
[43] per lord brougham in warning 6 Moo P.C.C. 341
[44] Williams on Wills 5th Ed (2001) p.28
[45] Supra pp. 73-74.
[46] Supra p.90.
[47] (1867) L.R 1P$5 398 at p. 436.
[48] Ibid
[49] (1938) 1 AII E,R.
[50] ibd at p. 282.

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