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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