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The capacity to execute a will –

In the recent decision of the Court of Appeal in Perrins v Holland and others [2010], clarification has been provided as to the evidence needed to establish whether a testator is mentally capable of validly executing a will.

In this case, a will was upheld despite the fact that the testator had lost mental capacity in between the time when he first gave instructions and the time when he actually executed the will, fifteen months later.

The current law is based on the 1883 decision of Parker v Felgate, which states that although mental capacity is required to give instructions, this is not necessary at the time of execution provided that the earlier instructions had not been revoked.

It was argued that the testator could not have had any knowledge of the terms and effect of the will at the time of executing it as he did not have the requisite mental capacity at that point and that Parker v Felgate should be overturned.

However, the court deemed that, as the provisions of the will were read in summary to the testator before he executed it, he was capable of understanding its provisions and agreeing to them. There was no need to prove his knowledge and approval of the contents of the will again at this point, all that was necessary was for him to correctly believe that they gave effect to his earlier instructions.

Therefore Parker v Felgate was applied and it was clarified that the correct questions to be asked are: whether the testator had testamentary capacity at the time he or she gave the instructions for the will, whether the will gives effect to those instructions as given; whether those instructions have changed; and whether, at the time of execution, the testator knows that he or she is giving effect to earlier instructions by doing so. This is different to a requirement for the testator to understand the terms of the will at the time of execution.

For advice and assistance on Wills, Probate and Powers of Attorney including Lasting Powers of Attorneys please call David Farr at kenneth elliott + rowe solicitors based in Romford Essex on 01708 757575


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