Perrins v Holland & Ors [2010] EWCA Civ 840

[2010] EWCA Civ 840Case No A3/2009/2508IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE CHANCERY DIVISION
Venue BIRMINGHAM DISTRICT REGISTRY[2009] EWHC 1945 (Ch)
MR JUSTICE LEWISON
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 21 July 2010
Before
THE CHANCELLOR OF THE HIGH COURTLORD JUSTICE MOORE-BICKLORD JUSTICE JACKSON
Between
DAVID ROBERT PERRINSAppellant(1) RICHARD PHILIP HOLLANDRespondents(2) SHARON RUTH MOORERespondent(3) ANNE DOONEYRespondent
MS PENELOPE REED QC & MR JAMES QUIRKE (instructed by Tydallwood Solicitors) for AppellantMR JOHN RANDALL QC & MR ANGUS BURDEN for Respondents 1 & 2 (instructed by Williamson & Soden Solicitors) for Respondent 3Hearing Hearing dates : 22 and 23 June 2010
JUDGMENT

The Chancellor :

[1]The issues in this appeal are whether the principles expounded by Sir James Hannen P in Parker v Felgate (1883) LR 8 PD 171, 173(1) are correct statements of the law and, if so,(2) were properly applied to the facts of this case by Lewison J in his judgment given on 31st July 2009. Permission to appeal was granted by Patten LJ, notwithstanding that the costs of all parties already exceeded the value of the estate, on the ground that the judge’s application of the principles in Parker v Felgate raised a serious issue of principle which this court should consider.[2]In Parker v Felgate a testatrix gave solicitors instructions for her will in July. She ceased to have testamentary capacity on 26th August. On 29th August she executed the will drawn by her solicitors in accordance with her instructions. She died on 2nd September. The executors sought to propound that will. Their claim was opposed by the next of kin of the testatrix on the grounds that the will was not duly executed, lack of testamentary capacity at the time of execution and want of knowledge and approval. The case was tried by Sir James Hannen with a jury. In the course of his summing up Sir James directed the jury as to the applicable law. He said (p.173 to which I have added numerals to facilitate subsequent reference):
"If a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good will, if executed by the testator, is that (1) he should be able to think thus far, "
I gave my solicitor 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." …That would be one state of mind. But if you should come to the conclusion that she did not at that time recollect in every detail all that had passed between them, do you think that (2) she was in a condition, if each clause of this will had been put to her, and she had been asked, "Do you wish to leave So-and-So so much," or do you wish to do this (as the case might be), she would have been able to answer intelligently "Yes" to each question? That would be another condition of mind. It would not be so strong as the first, viz., that in which she recollected all that she had done, but it would be sufficient. There is also a third state of mind which, in my judgment, would be sufficient. A person might no longer have capacity to go over the whole transaction, and take up the thread of business from the beginning to the end, and think it all over again, but if he is able to say to himself, (3) "I have settled that business with my solicitor. I rely upon his having embodied it in proper words, and I accept the paper which is put before me as embodying it;" it is not, of course, necessary that he should use those words, but if he is capable of that train of thought in my judgment that is sufficient."[3]The summing up continued in relation to specific clauses in the will:
“If Mr Ponsford [the solicitor] only inserted these clauses because he believed the testatrix would approve of them that would not be sufficient. To make the clauses good there must be either instructions previously given or the will as drawn must be afterwards acknowledged or approved. If you believe that there were such instructions, then the will only expresses her intention and carries out her instructions, and the clauses cannot be rejected.”
This passage suggests that prior instructions and subsequent knowledge and approval are permissible alternatives.[4]Sir James then received the verdict of the jury on the three questions he put to them:
“First, tell me whether you think that at the time when the will was executed the deceased recollected all the provisions that she desired to make by her will? If you come to the conclusion that she did, then it will not be necessary to consider the other questions, but supposing you think that she did not, then do you consider that she was capable of understanding that she was executing that will which she had given Mr Parker instructions to make. [The jury consulted for a short time]. SIR JAMES HANNEN. Gentlemen, you are agreed? The Foreman. Yes. SIR JAMES HANNEN. Did the deceased when the will was executed remember and understand the instructions she had given to Mr Parker? The Foreman. No. SIR JAMES HANNEN. Could she, if it had been thought advisable to rouse her, have understood each clause if it had been put to her? The Foreman. No. SIR JAMES HANNEN. Was she capable of understanding, and did she understand, that she was engaged in executing the will for which she had given instructions to Mr Parker? The Foreman. Yes.”
On the basis of this verdict Sir James held that the will was valid. SIR JAMES HANNEN. Gentlemen, you are agreed? The Foreman. Yes.”

The Facts

[5]The late Robert Perrins (“the Testator”) had an unhealthy life. Born in 1955 he was diagnosed as an insulin dependent diabetic in about 1970. In 1991 he was found to have primary progressive multiple sclerosis. By early 2000 the Testator was unable to read or write, was confined to a wheel chair and had little control over his movements. In between, in 1977, he married. There was one child of the marriage, namely the claimant David Perrins (“David”) who was born on 27th October 1986. The Testator and his wife separated in 1993. In 1994 the Testator met the third defendant Anne Dooney. She became the carer for the Testator; he wished to marry her. The Testator and his wife were divorced in early 2000. Notwithstanding the divorce the matrimonial disputes continued.[6]On 5th April 2000 Malcolm Ferguson, the Probate Manager with Sydney Mitchell, attended on the Testator at the request of Anne Dooney because he had been told the Testator wished to make a will and execute an enduring power of attorney. In a memorandum dated 12th April 2000 Mr Ferguson recorded that he had prepared a draft will under which two partners in his firm and a named friend of the Testator were appointed executors and the whole of the estate was to pass to Anne Dooney and failing her would be divided equally between David and the Testator’s brother. On the same day Mr Ferguson wrote to the Testator enclosing a copy of the will he had prepared and suggesting that Anne Dooney made an appointment for Mr Ferguson to attend on the Testator for the purpose of executing the will. On 31st May 2000 Mr Ferguson wrote to the Testator again inviting him to consider his will and inform Mr Ferguson of any amendments he might wish to make. On 27th June 2000 Mr Berry, a partner in the firm, attended on the Testator in connection with his matrimonial affairs. He was told by Anne Dooney in connection with the draft will that there were one or two matters which were not clear or satisfactory and that she would contact Mr Ferguson about them. That conversation was reported by Mr Berry to Mr Ferguson in a memorandum dated 30th June 2000. Accordingly on 6th July 2000 Mr Ferguson wrote to the Testator suggesting that if there were any queries in connection with the draft will Anne Dooney should telephone him to discuss them.[7]Having heard nothing further, on 25th June 2001 Mr Ferguson sent the Testator a bill for £200 plus £35 vat in connection with drafting and preparing his will. The following day Anne Dooney telephoned Mr Ferguson and left a message asking him to ring her in connection with the Testator’s will. Mr Ferguson did so and on 5th July 2001 sent the Testator a fresh copy of his will and invited Anne Dooney to make an appointment for the Testator to attend the offices of Sydney Mitchell in order to execute the same. An appointment was made and the Testator executed his will on 26th September 2001 (“the Will”).[8]The Testator was admitted to hospital in April 2002 and died there on 31st January 2003. On 24th June 2003 the executors named in the Will obtained probate thereof in common form. The only asset of substance in the Testator’s estate was a long lease of his residence at 28 Firbank Close, Bourneville then worth about £195,000. On 7th June 2005 David commenced this action seeking to propound an earlier will in his favour dated 5th August 1994. He contended that the Testator lacked testamentary capacity both when he gave instructions for the Will on 5th April 2000 and when he executed it on 26th September 2001 and did not know and approve the contents of the Will on 26th September 2001. David did not allege undue influence. The action was heard by Lewison J from 20th to 23rd July 2009. For the reasons given in his judgment handed down on 31st July 2009 he pronounced in favour of the Will.

The judgment of Lewison J

[9]In paragraphs 1 to 38 Lewison J described the background to the issues he had to decide and the relationships between the Testator and Anne Dooney on the one hand and between the Testator and David on the other. He considered the legal requirements for testamentary capacity and knowledge and approval in paragraphs 39 to 44 and 45 to 52 respectively. In paragraphs 53 to 100 he considered in detail the evidence as to the capacity of the Testator on the two crucial dates, namely 5th April 2000 and 26th September 2001. He concluded that the Testator had testamentary capacity on 5th April 2000 when he gave instructions for his will [101] but not on 26th September 2001 when he executed it [102]. Accordingly, as he noted in paragraph [104], but for the principle in Parker v Felgate he would have to pronounce against the Will.[10]In paragraphs 105 to 121 he considered the application of the principle in Parker v Felgate to the facts of the case in a series of steps. First, he reiterated his conclusion that the Testator had testamentary capacity at the time he gave the instructions for his will to Mr Ferguson on 5th April 2000 [105]. Second, he concluded as a matter of fact that the Will, as executed, did accurately record and implement the instructions given by the Testator to Mr Ferguson on 5th April 2000 [106]. Third, in view of the long gap between the giving of those instructions and the execution of the Will he considered whether the instructions given by the Testator on 5th April 2000 remained his testamentary wishes on September 26th 2001 and concluded that they did [107]–[109]. He then considered the capacity of the Testator at the time he executed the Will [110]-[118].[11]In the light of all the evidence his conclusions as expressed in paragraphs 119 to 121 were as follows:119. In the light of the totality of the evidence I accept that Mr Ferguson did briefly run through the will; but I do not accept that he spent as long as ten or fifteen minutes doing so. Again, in my judgment, Mr Ferguson was attempting to portray a greater level of care and competence than he in fact possessed. But although I consider that in his oral evidence he embellished or exaggerated the degree of care that he devoted to running through the will, I accept his evidence that he did run through it briefly, summarising the effect of each clause. Since the will is very simple and less than two pages long, it would not have taken much time.120. [Counsel for David] criticised Mr Ferguson's use of closed or leading questions (i.e. "are you happy to sign?"). He said that the use of open questions was "an irreducible minimum" in reliance on an observation to that effect by HH Judge Roger Cooke in Buckenham v Dickinson [2000] WTLR 1083, 1098. But Judge Cooke's observation was directed to the process of taking instructions for a will, where the instructions were in fact given by someone other than the testator and the testator was merely asked to agree to someone else's proposition. He was not considering the more ministerial act of executing the will; still less was he doing so in the context of the principle in Parker v Felgate, where it is plain from Sir James Hannen's direction to the jury that he saw nothing wrong with closed or leading questions.121. The facts as I have found them relating to the execution of the will allay any doubts about whether the contents of the will continued to represent [the Testator]'s testamentary wishes. I find that the contents of the will were summarised for [the Testator] and that he understood the summary. I find therefore that he knew and approved the contents of the will on the date he executed it, even though this may not be required in order to fall within the principle in Parker v Felgate. I find that [the Testator] had testamentary capacity when he gave instructions for the will; that the will as drafted embodied those instructions; and that when [the Testator] executed the will all those months later, his testamentary wishes remained unchanged; and that he knew and approved the contents of the will that he executed.”

The parties’contentions

[12]Counsel for David criticise the reasoning and conclusions of Lewison J on the following grounds:(1) The decision of Sir James Hannen in Parker v Felgate was and is wrong in principle and should not be followed. Counsel for David contend that there was no previous authority to support the statements of Sir James Hannen as to the law to be applied. They submit that the law requires a testator to have testamentary capacity at the time he executes his will and there is no justification for any relaxation of that requirement. It is contended that each of the subsequent reported cases in which it has been applied is either distinguishable or wrongly decided.(2) The conclusion of Lewison J that the Testator knew and approved the contents of the Will at the time he executed it is logically indefensible and wrong in law. If, as they contend, the Testator did not have testamentary capacity when he executed his will on 26th September 2001 then he cannot have known and approved its contents.(3) In his application of the principle of Parker v Felgate Lewison J failed to consider whether at the time the Testator gave instructions to Mr Ferguson on 5th April 2000 such instructions were ‘settled’ in the sense Sir James Hannen used that word in the third proposition set out in paragraph 2 above. Had he done so he would have been bound to conclude that the settled nature of those instructions had not been established. Each of those contentions is disputed by counsel for Anne Dooney. I will deal with them in the order in which I have set them out above. In doing so I shall have to consider many authorities, both ancient and modern, in their respective historical contexts. I am very grateful to counsel for their researches. Testamentary capacity.[13]The requirement for testamentary capacity is not statutory. According to Mortimer on Probate 1st Edition 1911 p.42 “...from time immemorial..by the law of England no person is considered capable of making a valid will unless he be – to adopt the language of the pleader – of sound mind, memory and understanding.” The author continued with a discussion of that state of mind by reference to the judgments of Sir J.P.Wilde in Smith v Tebbitt (1867) 1 P&D 398, Cockburn CJ in Banks v Goodfellow (1870) 5 Q.B.549 and Sir James Hannen in Boughton v Knight (1873) 3 P&D 64 and Burdett v Thompson (18783) 3 P&D 72, n.1. The Wills Act 1837 was enacted to give effect to recommendations of the fourth report of the Commissioners on the English Law of Real Property (1833) Parl.Papers (HC) vol xxiii. They had pointed out (p.12) that before its enactment there were ten different laws for regulating the execution of wills depending largely on the distinctions drawn by the law between real and personal property, themselves originating from jurisdictional struggles between the Ecclesiastical and Lay courts. Thus the Wills Act dealt with the formalities for execution of a will not the mental capacity of the testator. S.9(b) prescribes as one necessary condition to the validity of a will that “it appears that the testator intended by his signature to give effect to the will”. It is not suggested that this condition has anything to do with the mental capacity of the testator.[14]There are at least five pre-Wills Act decisions of the Ecclesiastical Courts which suggest that whilst what might be called full testamentary capacity is required at some time that time does not have to be the moment of the execution of the will. The first in time is Seeman v Seeman (1752) 1 Lee 181. In that case the testator had made his will in August 1735 by which he had bequeathed a number of pecuniary legacies. At some time some of those legacies had been obliterated. He died in 1751. One of the disappointed legatees challenged the will on the grounds that the obliteration had been made after the testator’s death or before his death but after he had lost full testamentary capacity. Sir George Lee held that the obliterations had been made in the testator’s lifetime but after he had lost full testamentary capacity. He continued [p.185]:
“I likewise thought that it was not necessary that the deceased should be in his senses at the instant the alterations were made; it was sufficient that he was fully in his senses when he directed the alterations to be made, and that they were made in his lifetime; in the case of Garnet v Sellars, Delegates, the only questions were whether the deceased was in his senses when he gave instructions for his will; and whether the will was reduced to writing before the testator was dead; and the court being satisfied on those two points, pronounced for the will without enquiring whether he remained in his senses during the time the will was writing.”
[15]In Moore v Hackett (1755) 2 Lee 147 the court pronounced for the will, there being no opposition, on the basis of evidence proving the testator had full testamentary capacity at the time he gave instructions for his will and that the will propounded conformed to those instructions even though the will was not read over to the testator and he had lost full testamentary capacity before he executed it.[16]Sandford v Vaughan (1809) 1 Phill Ecc 39 concerned a number of testamentary papers left by Sir John Chichester. In relation to the fifth paper Sir John Nicholl observed [p.50]:
“Where an unfinished draft is propounded, it must be shown that the deceased was prevented, by invincible necessity, or by the act of God from completing it. A person certainly may, in the last moments of his life, so recognise a testamentary paper written twenty years before, as to give it effect and validity, without any formal execution: the length of time during which it had continued unfinished would not of itself be sufficient to induce the rejection of such a paper, although it would create a circumstance of strong presumption against it.”
Sir John then expressed the view, based on the facts alleged in the plea, that the claim to propound the fifth paper was unlikely to succeed. Although he gave the parties permission to amend this allegation was not proceeded with.[17]Harwood v Baker (1840) 3 Moo PC 282 contains a much cited description of full testamentary capacity in these terms [p.290]:
“..in order to constitute a sound disposing mind, a Testator must not only be able to understand that he is by his will giving the whole of his property to one object of his regard; but that he must also have capacity to comprehend the extent of his property, and the nature of the claims of others, whom by his will he is excluding from all participation in that property..”
But, in addition, the Privy Council formulated the following proposition [p.313]:
“Now if their Lordships had found from the other evidence that Mr Baker [the testator] had, while in a state of health, compared and weighed the claims of his relations, and had formed the deliberate purpose of rejecting them all in favour of his wife, but had omitted to carry that purpose into effect before the attack of illness under which he dies; and that during that illness he had acted upon that previous intention, and executed a Will in question, - less evidence of the capacity to weigh those claims during his illness might have been sufficient to show that the Will propounded really did contain the expression of the mind and will of the deceased.”
[18]Following the passing of the Wills Act 1837, in 1857 the Court of Probate was established and the jurisdiction formerly exercised by the Ecclesiastical Courts was transferred to it. The judge of the Probate Court was entitled to sit with a jury to determine matters of fact, see generally Holdsworth’s History of English Law Vol. XV 203. Sir James Hannen was the third judge of the newly created Probate Court, having been appointed a judge of the Queen’s Bench in 1868. His “peculiar gift [was] for making his meaning perfectly clear in the fewest words”, see Holdsworth’s History of English Law Vol. XVI 156. He was also party to the decision of the Court of Queen’s Bench in Banks v Goodfellow (1870) LR 5 QB 549.[19]In that case the court not only [p.565] defined full testamentary capacity in terms frequently adopted since but also explained the principle of freedom of testamentary disposition in these terms:
“The English law leaves everything to the unfettered discretion of the testator, on the assumption that, though in some instances, caprice, or passion, or the power of new ties, or artful contrivance, or sinister influence, may lead to the neglect of claims that ought to be attended to, yet, the instincts, affections, and common sentiments of mankind may be safely trusted to secure, on the whole, a better disposition of the property of the dead, and one more accurately adjusted to the requirements of each particular case, than could be obtained through a distribution prescribed by the stereotyped and inflexible rules of a general law.”
[20]Given this historical background, I am unable to accept the submission of counsel for David that the judgment of Sir James Hannen in Parker v Felgate came ‘out of the blue’ and without prior support in the decided cases. As he was trying the case with a jury citation of authority would not have been appropriate. His directions to the jury are supported by the cases I have referred to in paragraphs 14 to 17 above. Further his directions were cited without comment in Theobald on Wills 3rd Ed. 1885. In chapter IV entitled Requisites for a valid will it is stated:
“But a will prepared in accordance with the testator’s instructions is valid, though at the time of execution the testator remembers only that he has given instructions and believes the will to be in accordance with them. Parker v Felgate, 8 P.D. 171.”
[21]Further the decision in Parker v Felgate was stated to be good law, as one of two grounds for the decision, by the Privy Council in Pereira v Pereira [1901] AC 354. Similarly in Mortimer on Probate 1911 p.70 Harwood v Baker is cited as authority for the proposition that:
“If a testator, while in a state of health, has given instructions for a will, and it is prepared in accordance with those instructions, a very slight degree of mental capacity at the time of execution will, it would seem, suffice.”
The author then refers to Parker v Felgate as authority for the proposition that it is sufficient that the testator when executing the will is capable of understanding and does understand that he is executing the will for which he had previously given instructions.[22]Since then the principles in Parker v Felgate have been applied without comment in Kenny v Wilson (1911) 11 State Reporter (NSW) 460; Thomas v Jones [1928] P. 162, 163; Battan Singh v Amirchand [1948] AC 161; Re the Estate of Wallace [1952] 2 TLR 925; Re Flynn [1982] 1 WLR 310, 320 and Clancy v Clancy [2003] WTLR 1097. In two of them, Re the Estate of Wallace and Re Flynn, the principles of Parker v Felgate were applied in relation to the separate requirement of knowledge and approval.[23]Counsel for David submits with some force that if the validity of a will depends on both testamentary capacity and due execution logically the former should exist at the time of the latter. The cases to which I have referred demonstrate clearly that that was not and is not the law. What is required is due execution of a will which the court can be satisfied expressed the wishes of a testator at a time when he did have full testamentary capacity and has not been subsequently revoked. The reasons lie, I believe, in the freedom of testamentary disposition which the law favours, as explained by the court in Banks v Goodfellow, the usual preference of the court, if reasonably possible, to uphold transactions (cf in the context of the interpretation of contracts the maxim res magis valeat quam pereat) and the pragmatic recognition in that context that the testator has no further opportunity to give expression to his wishes. Whatever the reason, the decision of the Privy Council in Pereira v Pereira is strong persuasive authority for upholding the decision in Parker v Felgate. Further the decisions to which I have referred demonstrate a proposition of some antiquity acted on for over 250 years. In those circumstances I do not consider that, even if I thought that Parker v Felgate had been wrongly decided, which I do not, it is open to this court to hold that Parker v Felgate was wrongly decided and should not be followed. For all these reasons I would reject the first proposition advanced by counsel for David summarised in paragraph 12(1) above.

Want of knowledge and approval

[24]Counsel for David submits, as summarised in paragraph 12(2) above, that the judge’s conclusion on this issue is illogical and wrong in law. If the need for knowledge and approval requires full testamentary capacity at the time the will is executed then this submission is unanswerable but unnecessary. But if full testamentary capacity is not required at the time of due execution then it is not obvious why the requirement for knowledge and approval should import it indirectly. In my view it is clear that it does not.[25]First, it is clear from its origins that the requirement of knowledge and approval is a shorthand reference to the need for evidence to rebut suspicious circumstances. This appears from the cases cited to us by counsel for Anne Dooney. In Billinghurst v Vickers (1810) 1 Phill. Ecc. 187 a testator “much addicted to the immoderate use of spirituous liquors” cut off his only relation, his sister, with a shilling. But the will was only partly written by the testator and completed by Billinghurst at the testator’s request and on his instructions. The will was then read over to the testator and executed by him. Billinghurst was not only a substantial pecuniary legatee but also entitled to the residue of the Testator’s estate. Sir John Nicholl said [193]:
“The court must take a cautious view in deciding questions of fact and law, it is an established principle that, where capacity is doubtful at the time of execution there must be proof of instructions or reading over; a man in a torpid state may easily acquiesce in signing his name to a will set before him, more especially when he knows that there is something in the paper which he wishes to take effect, the presumption is also strong against the act done by the agency of the party benefited; the act is not actually defeated as it was by the civil law provided the intention can be fairly deduced from other circumstances.”
In the event, the court pronounced against the gift of residue.[26]In Paske v Ollat (1815) 2 Phill. Ecc. 323 the will was written by the testator’s attorney and contained a bequest in his favour. In the event the court pronounced for the will. Sir John Nicholl said [324]:
“...the law of England requires, in all instances of the sort, that the proof should be clear and decisive: the balance must not be left in equilibrio; the proof must go not merely to the act of signing, but to the knowledge of the contents of the paper. In ordinary cases this is not necessary; but where the person who prepares the instrument, and conducts the execution of it, is himself an interested person his conduct must be watched...”
[27]Similarly in Ingram v Wyatt (1828) 1 Hagg. Ecc. 384 the circumstance that the testator’s agent and attorney was appointed executor and almost universal legatee excited suspicion so as to call for more than evidence of due execution. Sir John Nicholl explained [401]:
“When all this [full testamentary capacity] can be truly predicated of the person bare execution is sufficient: but if it cannot be truly predicated, a deficiency of capacity exists – a deficiency not necessarily rendering the person intestable, but in proportion to the degree of deficiency, requiring clearer and more direct proof of the unbiased testamentary intention.”
Later [431], after reviewing the evidence of capacity, Sir John Nicholl added:
“...[the testator] was therefore (to take it no higher) a person so far liable to be imposed upon as to require the court to look with vigilance and jealousy into the proofs of the factum: that he might possess a testable capacity; and that very strong and clear evidence of the factum and of free and active testamentary intention might establish the executor’s case.”
[28]Barry v Butlin (1838) II Moore 480 is a decision of the Privy Council on appeal from the Prerogative Court of Canterbury. As such it is binding on courts of first instance and, I would have thought, at least highly persuasive for the Court of Appeal, see Halsbury’s Laws of England 5th Ed. Vol.11 para 103 n.1. The advice was given by Baron Parke. In that case the testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. The Privy Council specifically approved [482] the decisions to which I have referred in paragraphs 25 to 27 above as establishing the proposition that the propounder of a will:
“must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator.”
One issue was whether the only way in which that onus could be discharged was by evidence of prior instructions for or subsequent reading over of the will before execution by the testator. The Privy Council disposed of this issue [485] in the following terms:
“Nor can it be necessary, that in all such cases, even if the testator’s capacity is doubtful, the precise species of evidence of the deceased’s knowledge of the will is to be in the shape of instructions for, or reading over the instrument. They form, no doubt, the most satisfactory, but they are not the only satisfactory description of proof, by which the cognizance of the contents of the will may be brought home to the deceased. The court would naturally look for such evidence; in some cases it might be impossible to establish a will without it, but it has no right in every case to require it.”
It is in my view clear from this passage that the fact to be proved is knowledge and approval in the sense of acceptance of the contents. That does not require full testamentary capacity.[29]To the like effect is the advice of the Privy Council in Battan Singh v Amirchand [1948] AC 161 on appeal from the Supreme Court of Fiji. In that case the will was invalid because the testator lacked testamentary capacity, see page 172. But the judge had rejected the allegation that the will was invalid for want of knowledge and approval and that point was not raised in the appeal, see page 168. At page 170 the Privy Council recognised that:
“A testator may have a clear apprehension of the meaning of the draft will submitted to him and may approve it, and yet if he was at the time through infirmity or disease so deficient in memory that he was oblivious of the claims of his relations, and if that forgetfulness is an inducing cause of his choosing strangers to be his legatees, the will is invalid.”
Thus the invalidity arose from the lack of testamentary capacity, not any want of knowledge and approval. That that is the test was clearly accepted by Devlin J in Re Wallace [1952] 2 TLR 925, Slade J in Re Flynn [1982] 1 WLR 310, 320 and Rimer J in Clancy v Clancy [2003] WTLR 1097, [74].[30]Counsel for David relies strongly on paragraph 62 of the judgment of Chadwick LJ in Hoff v Atherton [2005] WTLR 99, 117 where he said:
“That submission, as it seems to me, betrays a failure to appreciate that the requirements of testamentary capacity and knowledge and approval are conceptually distinct. A finding of capacity to understand is, of course, a prerequisite to a finding of knowledge and approval. A testator cannot be said to know and approve the contents of his will unless he is able to, and does, understand what he is doing and its effect. It is not enough that he knows what is written in the document which he signs. But if testamentary capacity – the ability to understand what is being done and its effect – is established, then it is open to the court to infer that a testator who does know what is written in the document which he signs does, in fact, understand what he is doing. And, where there is nothing to excite suspicion, the court may infer (without more) that a testator who signs a document as his will does know its contents. It would be surprising if he did not.”
Counsel for Anne Dooney submits that that paragraph cannot be read as requiring testamentary capacity as a condition for knowledge and approval, but if it can it is inconsistent with, in particular, Barry v Butlin and Battan Singh v Amirchand.[31]Plainly testamentary capacity is a prerequisite to knowledge and approval because if the former is not shown there is no need to look for the latter. But if Chadwick LJ is to be read as going further than that I do not agree and am not bound to follow him. First, the submission to which Chadwick LJ referred [61] was to the effect that the judge should have considered whether it had been established that the testatrix had actual understanding, comprehension and appreciation of the claims to which she should give effect, proof of an ability to do so not sufficing. The decision of the Court was that that was not a necessary requirement to establish the necessary testamentary capacity, nor was it necessary to establish that the testatrix understood significant changes in the prospective new will when compared with the previous one. There was no issue as to the mental capacity required for sufficient knowledge and approval. Second, none of the relevant authorities to which I have referred in paragraphs 24 to 29 above were considered. Third, the dictum of Chadwick LJ, if going to the point on which counsel for David relies, is contrary to the actual decision in those cases. Indeed there was no consideration of Parker v Felgate or the cases in respect of those principles which preceded or followed it either.[32]For these reasons I reject the submission that the conclusion of Lewison J was illogical and not open to him. His conclusion [52] that: “..in a case in which the principle in Parker v Felgate is applied it is not necessary to prove knowledge and approval of the will, provided that(a) the testator believes that it gives effect to his instructions and(b) it does in fact do so.” is in accordance with the authorities to which I have referred. In addition his factual conclusion in paragraph 121 that: “the contents of the will were summarised for Robert and that he understood the summary. I find therefore that he knew and approved the contents of the will on the date he executed it, even though this may not be required in order to fall within the principle in Parker v Felgate” was clearly open to him on the evidence he had heard and cannot be challenged in this court. On the authority of Barry v Butlin (1838) II Moore 480 that is enough.

Settled Instructions

[33]The third submission of counsel for David, summarised in paragraph 12(3) above, stems from the third state of mind in Parker v Felgate which I have quoted in paragraph 2 above, namely that, “..[the testator] is able to say to himself, "I have settled that business with my solicitor. I rely upon his having embodied it in proper words, and I accept the paper which is put before me as embodying it". Counsel for David submits that although this requirement is only stated in respect of the third state of mind it should be implied into and applied to the second state too. Otherwise, tentative or provisional instructions may become final after testamentary capacity is lost.[34]Counsel for David points to the facts that Anne Dooney did not explain why she had been asked to telephone the solicitors in the first place, why the testator did not react to the draft will being sent to him on 12th April and 31st May 2000, what matters were not clear or satisfactory as recorded in the attendance note dated 30th June 2000 or why the testator only reacted when sent the solicitor’s bill on 21st June 2001. She relies on the fact that though the Testator’s instructions were taken on 5th April 2000 the will was not executed until 26th September 2001, some 19 months later. She submits that this delay should be considered against the background of the ongoing matrimonial dispute. She points out that Lewison J concluded as a matter of fact [112] that the Testator did not in September 2001 recall the instructions given by him to Mr Ferguson in April 2000[35]I recognise the force of these points and so did the judge. He concluded [105] to [106] that the Testator had testamentary capacity when he gave the instructions and that those instructions were carried forward into the draft will. In [107] he specifically considered whether the instructions given in April 2000 remained the Testator’s testamentary wishes in September 2001. He then set out and considered one by one the points relied on by counsel for David. He concluded in [121] that the Testator’s testamentary wishes expressed to Mr Ferguson in April 2000 remained unchanged when he executed his will in September 2001. The judge found not only that the Testator did then have the state of mind described by Sir James Hannen in Parker v Felgate as the second state of mind [112] but also that the contents of the will were summarised to the Testator on 25th September 2001, that he understood that summary and proceeded to execute his will.[36]No ground has been shown for challenging any of those conclusions. Whilst the judge might not have described the instructions as settled when given he was satisfied that the Testator’s wishes had not changed in the period of time between giving the instructions and executing the will. If, as I believe, Parker v Felgate is good law then the judge’s factual findings lead to only one conclusion, namely that the Will is valid and correctly propounded in solemn form.

Conclusion

[37]For all these reasons I would reject each of the submissions of counsel for David I have summarised in paragraph 12 above. I would dismiss the appeal in so far as brought on those grounds. There remains for further argument the appeal from the order of Lewison J in respect of the costs of the proceedings before him. They were not considered at the earlier hearing of the appeal so that the executors should not incur costs of appearing on those grounds which were of no concern to them. Given that we shall now have to deal with the costs of this appeal in addition I would urge the parties to consider whether it is right to incur yet further costs in contesting the costs order made by Lewison J. The wreck of the Testator’s estate is already total, there can be nothing left in it for anyone. Lord Justice Moore-Bick[38]I agree that the appeal should be dismissed but in view of the importance of the issues to which it gives rise I propose to express my reasons for having reached that conclusion in my own words.[39]It has been said on many occasions that English law favours freedom of testamentary disposition. As Cockburn C.J. said in Banks v Goodfellow (1870) L.R. 5 Q.B. 549, 564 “The English law leaves everything to the unfettered discretion of the testator, on the assumption that, though in some instances, caprice, or passion, or the power of new ties, or artful contrivance, or sinister influence, may lead to the neglect of claims that ought to be attended to, yet, the instincts, affections, and common sentiments of mankind may be safely trusted to secure, on the whole, a better disposition of the property of the dead, and one more accurately adjusted to the requirements of each particular case, than could be obtained through a distribution prescribed by the stereotyped and inflexible rules of a general law.”[40]Fom time immemorial (Mortimer, The Law and Practice of the Probate Division of the High Court of Justice, 1911), however, it has been the law that in order to make a valid will a testator must have have sufficient mental capacity and since Banks v Goodfellow itself that has been understood to mean that at the time he executes his will the testator “. . . shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.” The requirement that the testator should enjoy a sufficient degree of mental capacity is explained not only by the desire to prevent unsatisfactory or immoral disposals of accumulated wealth, but by the fact that “It is a general requirement of the law that for a juristic act to be valid the person performing it should have the mental capacity . . . to understand the effect of that particular act . . .”: Hoff v Atherton [2004] EWCA Civ 1554, [2005] 1 WTLR 99, para [33] per Peter Gibson L.J.[41]By the early part of the nineteenth century, if not before, there had developed another, separate, requirement, namely, that at the time he executed the will the testator should have known and approved of the contents of the instrument. Knowledge and approval thus became a requirement that had to be satisfied in every case if the will were to be valid, but in the absence of any grounds for doubting its existence proof of testamentary capacity and the fact of execution were taken to be sufficient evidence of knowledge and approval.[42]In the present case the deceased, Robert Perrins, was in the grip of advanced multiple sclerosis at the time he executed his will on 26th September 2001. The circumstances in which he came to perform that act have been described by the Chancellor and I gratefully adopt his account of them. Suffice it to say that the judge was not satisfied that he had testamentary capacity at that time, but he made other findings on the basis of which he held that the will was valid. Those findings were(i) that when on 5th April 2000 Robert gave instructions to his solicitor to prepare a will he did have testamentary capacity;(ii) that when he applied his mark to the instrument on 26th September 2001 he understood that he was executing a will;(iii) that immediately before he executed the will the solicitor went through it with him and summarised the effect of each clause;(iv) that Robert was capable of understanding the summary he was given, was capable of responding intelligently to what was being put to him and in each case gave an explicit indication of assent;(v) that the will accurately reflected the instructions he had given in April 2000; and(vi) that its contents continued to represent his testamentary wishes. The judge recognised that Robert’s lack of testamentary capacity on 26th September would require him to pronounce against the will but for the principle in Parker v Felgate (1883) L.R. 8 P.D. 171. Applying that principle, however, he pronounced in favour of the will.[43]In Parker v Felgate the deceased had given instructions for the preparation of her will some weeks before she went into a coma resulting from kidney failure. Until she went into the coma she was in full possession of her mental faculties, but thereafter she could be roused only with difficulty and no longer had testamentary capacity. Shortly before her death the deceased was roused and the will was rustled in front of her. She was told that the document being shown to her was her will and was asked whether she wished a certain lady present to execute it on her behalf. She said ‘Yes’ and the lady then executed it for her. The will was contested by members of the deceased’s family.[44]The action was tried by Sir James Hannen and a jury. Having reminded the jury of the evidence he said:
“This being the material evidence, the law applicable to the case is this: If a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good will, if executed by the testator, is that he should be able to think thus far, “ I gave my solicitor 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.”
Now, I have only put into language that which flashes across the mind without being expressed in words. Do you believe that she was so far capable of understanding what was going on? Did she at that time know and recollect all that she had done with Mr. Parker? That would be one state of mind. But if you should come to the conclusion that she did not at that time recollect in every detail all that had passed between them, do you think that she was in a condition, if each clause of this will had been put to her, and she had been asked, “ Do you wish to leave So-and-So so much,” or do you wish to do this (as the case might be), she would have been able to answer intelligently “ Yes” to each question? That would be another condition of mind. It would not be so strong as the first, viz., that in which she recollected all that she had done, but it would be sufficient. There is also a third state of mind which, in my judgment, would be sufficient. A person might no longer have capacity to go over the whole transaction, and take up the thread of business from the beginning to the end, and think it all over again, but if he is able to say to himself, “ I have settled that business with my solicitor. I rely upon his having embodied it in proper words, and I accept the paper which is put before me as embodying it;” it is not, of course, necessary that he should use those words, but if he is capable of that train of thought in my judgment that is sufficient.”[45]When formulating the questions for the jury he said:
“First, tell me whether you think that at the time when the will was executed the deceased recollected all the provisions that she desired to make by her will? If you come to the conclusion that she did, then it will not be necessary to consider the other questions, but supposing you think that she did not, then do yon consider that she was capable of understanding that she was executing that will which she had given Mr. Parker instructions to make. ”
[46]The jury, having consulted for a short time, answered the questions put to them as follows:
“Sir James Hannen: Gentlemen, are you agreed? The Foreman: s. Sir James Hannen: Did the deceased when the will was executed remember and understand the instructions she had given to Mr. Parker? The Foreman: No. Sir James Hannen: Could she, if it had been thought advisable to rouse her, have understood each clause if it had been put to her? The Foreman: No. Sir James Hannen: Was she capable of understanding, and did she understand, that she was engaged in executing the will for which she had given instructions to Mr. Parker? The Foreman: Yes.”
[47]On the basis of those answers Sir James Hannen pronounced in favour of the will. He did so on the grounds that it was sufficient that the deceased had had testamentary capacity at the time she gave the instructions, that she believed (correctly) that the document reflected those instructions and that she approved it by signifying her intention to execute a document in those terms.[48]Parker v Felgate has been applied or referred to with approval in a number of subsequent cases, though in none of them has there been any significant discussion of the principles on which it is based. In Perera v Perera [1901] A.C. 354 the Privy Council specifically endorsed the decision in the following terms:
“The learned counsel for the appellant . . . said that the will may have been, and probably was, read over to the testator, but that there was nothing to shew that he followed the reading of the will or understood its meaning. He adopted the argument of Laurie J., to the effect that it was not enough to prove that a testator was of sound mind when he gave instructions for his will, and that the instrument drawn in pursuance of those instructions was signed by him as his will, if it is not shewn that he was capable of understanding its provisions at the time of signature. That, however, is not the law. In Parker v. Felgate Sir James Hannen lays down the law thus: “If a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good will, if executed by the testator, is that he should be able to think thus far: ‘I gave my solicitor 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.’”
Their Lordships think that the ruling of Sir James Hannen is good law and good sense.”[49]It is debatable whether that statement formed part of the ratio in that case and, even it does, I doubt whether technically it is binding on this court, being contained in a decision of the Privy Council. Nonetheless, it is of high persuasive authority.[50]In In the Estate of Wallace [1952] 2 T.L.R. 925 the deceased shortly before his death wrote and signed a statement called his “Last wish” which provided that certain persons were to have all his property. His instructions were embodied in a will which he executed just before he died. The will was not read over or summarised to him before he executed it and the judge, Devlin J., was not satisfied that the deceased knew and approved its contents at the time he executed it. However, he found that he knew and approved of the contents of the “Last wish” and had executed the will in the understanding that it gave effect to its provisions. Devlin J. pronounced for the will, applying the principle in Parker v Felgate, on the basis that it is sufficient for the court to be satisfied that the deceased executed the will knowing that it had been drawn in accordance with his instructions.[51]Re Flynn [1981] 1 W.L.R. 310 concerned an application to strike out a challenge to a codicil on the grounds that the claim disclosed no cause of action. The issues therefore fell to be determined by reference to the facts alleged in the pleadings. The deceased, who had given instructions for the preparation of the codicil some time earlier, was gravely ill after a heart attack at the time when he executed it and died the next day. The codicil was challenged on the grounds of want of knowledge and approval. Slade J., although not referring interms to Parker v Felgate, described the position in law as follows at page 320:
“The authorities appear to show that in a case where a testator, even in a state approaching insensibility, has executed a testamentary instrument drawn up in accordance with previous instructions, he will be held to have known and approved of its contents if, at the time of execution, he was capable of understanding and did understand that he was engaged in executing the will for which he had given instructions, even though at the moment of execution he might not have remembered those previous instructions and would not, at that moment, have understood the provisions of the will, if read to him clause by clause: see Williams and Mortimer, Executors, Administrators and Probate, 15th ed. (1970), p. 148 and the cases there cited. However, if a litigant is successfully to avail himself of this principle he must, I think, satisfy the court at least that the testator at the time of execution was capable of understanding and did understand that he was executing the will for which he had given instructions.”
[52]In Re Clancy [2003] WTLR 1097, a case in which both testamentary capacity and knowledge and approval were in issue, Rimer J. pronounced in favour of the will, applying Parker v Felgate and Perera v Perera. About four months before her death the deceased, who had three children, had given instructions for a new will in which she directed that her entire estate was to be left to her son Edward. Her solicitor drafted a will giving effect to those instructions and sent it to her. About three months later she was admitted to hospital with a terminal illness. She telephoned the solicitor from hospital to confirm her approval of the will. He attended on her and she executed it. The medical evidence indicated that at the she executed it it was highly unlikely that the deceased was able to make decisions about her will, but there was evidence that it was likely that she would have been able to recognise the will as the draft she had previously seen. One of the deceased’s other children challenged the will alleging that she had lacked testamentary capacity at the time of its execution and that she did not know and approve its contents. Rimer J. pronounced for the will on the grounds that it reflected the deceased’s instructions and that, although she did not have testamentary capacity at the time she executed the will, she did have such capacity when she gave the instructions for it. It was sufficient that she executed the will knowing what she was doing and acting in the understanding that she was giving effect to her earlier instructions.[53]Notwithstanding its approval and repeated application, Miss Reed Q.C. submitted that this court should overturn Parker v Felgate because it is illogical and contrary to established principle inasmuch as it imputes to the deceased testamentary capacity that he did not enjoy at the time he executed the will and an understanding and approval of the effect of the document which, by reason of his very lack of capacity, he was incapable of forming. Although one might dispose of this argument simply by saying that this court should not overturn a decision of such long standing and general acceptance, these submissions make it necessary, in my view, to consider the principles on which the decision rests.[54]Viewed broadly, the purpose of requiring proof of testamentary capacity and knowledge and approval is to ensure that the will as executed reflects the conscious intentions of a sound mind. Unless the testator writes the will himself and decides upon its dispositions as he does so, the execution of a will gives effect to decisions made before the document itself was prepared which continue to represent the testator’s intentions. If they do not, he will give fresh instructions and start the process again. In that context it is important to note that the decision in Parker v Felgate does not displace the requirement for full testamentary capacity; it merely displaces the ordinary requirement that the deceased should have had such capacity at the time he executed the will.[55]Unless there is reason to question it, proof of testamentary capacity and the execution of the will are sufficient to establish knowledge and approval of its contents. It can normally be accepted that a person of sound mind is capable of disposing of his property and intends to do so in the manner provided for by the will. In such cases it is irrelevant to enquire whether he lacked capacity at the time when he gave the instructions, whether they continued to reflect his intentions or whether he realised that the document gave effect to them. It is enough that he was capable of making the decision at the time he executed the document. Where the testator loses some of his faculties between giving instructions and executing the will, however, the position is different. One must then ask(i) whether at the time he gave the instructions he had the ability to understand and give proper consideration to the various matters which are called for, that is, whether he had testamentary capacity,(ii) whether the document gives effect to his instructions,(iii) whether those instructions continued to reflect his intentions and(iv) whether at the time he executed the will he knew what he was doing and thus had sufficient mental capacity to carry out the juristic act which that involves. If all those questions can be answered in the affirmative, one can be satisfied that the will accurately reflects the deceased’s intentions formed at a time when he was capable of making fully informed decisions.[56]That, it seems to me, is what Parker v Felgate decides. In the first example given by Sir James Hannen the testator can remember giving certain instructions to his solicitor, believes that they have been carried out and executes the will in that belief. In such a case there is testamentary capacity at the date of decision and an intention to give effect to those decisions at the date of execution. In the second example the testator cannot remember the details of the instructions he gave, but has capacity to understand each clause of the will as it is summarised to him and to indicate his assent to it. Again, there is testamentary capacity at the date of decision and an intention to give effect to them at the date of execution. In the third example the testator can remember only that he gave instructions for his will, believes that the document correctly reflects them (as it does), and decides to execute it on that understanding. In that case also there is testamentary capacity at the date of decision and an intention to give effect to those earlier decisions at the date of execution.[57]Miss Reed’s argument relied heavily on the proposition that testamentary capacity is necessary for there to be knowledge and approval of the will’s contents. The argument is that, since knowledge and approval requires the testator to understand and assent to the dispositions in the will, it is necessary for him to have a full understanding of its effect so as to be able in the moment that his pen is poised over the paper (so to speak) to review all the possible dispositions open to him and confirm the choices previously made. Unless he retains full testamentary capacity, he cannot do that.[58]In Battan Singh v Amirchand [1948] A.C. 161 the deceased made a will the day before he died in which he declared that he had no relations and left his property to certain persons who were unrelated to him. At the time of making the will it was read over to him. He was capable of understanding its meaning and approving it, but was so severely enfeebled by disease that he was incapable of remembering the existence of his four nephews. The Privy Council held that he did not have testamentary capacity and that the will was therefore invalid. Knowledge and approval was not in issue before the Privy Council, because the finding of the judge below that the deceased was capable of understanding the meaning of the will and approving its contents was not challenged on appeal, but the case supports the proposition that testamentary capacity is not required in order for there to be knowledge and approval.[59]Miss Reed’s submission is also inconsistent with the decision of Devlin J. in Re Wallace, to which I referred earlier, and in my view proceeds on a misunderstanding of what is meant by knowledge and approval in this context. Mr. Randall Q.C. was able to demonstrate by reference to three decisions in the early nineteenth century that the requirement for knowledge and approval had its origins in cases where there was some reason to doubt whether the will represented the true wishes and intentions of the deceased. In Billinghurst v Vickers (1810) 1 Phill. Ecc. 186, 161 E.R. 956 the testator started to write his will in his own hand but became too weak to continue and sent for his friend Billinghurst whom asked to complete it. Billinghurst advised him to wait until he felt stronger and complete it himself, but he insisted and Billinghurst completed it for him. He then read the will over to the testator who executed it. By the will the testator made a derisory bequest to his sister, his only surviving relative, and gave his property to various beneficiaries, including a substantial legacy to Billinghurst himself, to whom he also bequeathed the residue of his estate. The will was challenged on the grounds that the deceased had lacked capacity at the time he made it and had not approved its contents.[60]The following two passages in the judgment of Sir John Nicoll at pages 191 and 192 are of particular relevance:
“The handwriting of the former part of the will and the signature are clearly proved by one witness, and are not ventured to be disproved by plea. This is therefore full proof of an act of execution; and execution, generally speaking, implies every thing till the contrary is proved; proof of reading over, proof of instructions are not necessary unless the capacity is shewn to be doubtful. . . . . . . it is an established principle that, where capacity is doubtful at the time of execution, there must be proof of instructions or of reading over; a man in a languid, torpid state may easily acquiesce in signing his name to a will set before him, more especially when he knows that there is something in the paper which he wishes to take effect; the presumption also is strong against an act done by the agency of the party benefited;”
[61]Paske v Ollat (1815) 2 Phill Ecc. 323, 161 E.R. 1158 was another case in which the will had been drawn by a legatee. Sir John Nicholl said:
“The writer of the will, who was the deceased’s attorney, is himself benefited under it to a considerable amount. The Court is always extremely jealous of a circumstance of this nature. By the Roman law (Dig. lib. 34, s. 8) Qui se scripsit hæredem could take no benefit under a will. By the law of England this is not the case: but the law of England requires, in all instances of the sort, that the proof should be clear and decisive; the balance must not be left in equilibrio; the proof must go not merely to the act of signing, but to the knowledge of the contents of the paper. In ordinary cases this is not necessary; but where the person who prepares the instrument, and conducts the execution of it, is himself an interested person, his conduct must be watched as that of an interested person; propriety and delicacy would infer that he should not conduct the transaction; and à fortiori in a case where he is the confidential attorney of the deceased; and where the benefit conferred is to a considerable amount.”
[62]In Ingram v Wyatt (1828) 1 Hagg. Ecc. 384, 162 E.R. 621 doubts had been raised about the deceased’s mental capacity at the time of making his will. In the course of his judgment Sir John Nicholl described the test for, and consequences of, capacity in the following terms at page 401:
“In order to arrive at the true meaning of “imbecility of mind,” we may resort to what the law describes as perfect capacity, which is most correctly found in the form of our pleadings. The averment to be contained in a common condidit is, that the testator was “of sound mind, memory, and understanding, talked and discoursed rationally and sensibly, and was fully capable of any rational act requiring thought, judgment, and reflection.”
Here is the legal standard. When all this can be truly predicated of the person, bare execution is sufficient: but if it cannot be truly predicated, a deficiency of capacity exists—a deficiency not necessarily rendering the person intestable, but in proportion to the degree of deficiency, requiring clearer and more direct proof of the unbiassed testamentary intention.”[63]These passages support Mr. Randall’s submission that by the middle of the nineteenth century proof of knowledge and approval did not require the existence of testamentary capacity; what was required (and then only in cases where a doubt was raised) was merely sufficient proof that the testator intended to make the dispositions contained in the will. That might be established in a variety of ways. As Parke B. observed in Barry v Butlin (1838) 2 Moore P.C. 480, 485, 12 E.R. 1089,1091, where suspicions arise, the court must be satisfied that the will does in fact express the real intentions of the deceased. The most satisfactory evidence for that is to be found in the existence of prior instructions or the reading over of the instrument to the deceased, but those are not the only means by which that may be proved. A modern statement of the position is to be found in paragraph 33 of the judgment of Peter Gibson L.J. in Fuller v Strum [2001] EWCA Civ 1879, [2002] 1 W.L.R. 1097.[64]The use of the expression “knowledge and approval” is liable to give the impression that the court is concerned with whether at the time he executed the will the testator must be able to reconsider all the dispositions he has made. That would require testamentary capacity, but that is not what is meant by the convenient expression “knowledge and approval”. Modern authorities recognise that a clear distinction is to be drawn between testamentary capacity and knowledge and approval. As the judge observed in this case (judgment paragraph 49), testamentary capacity includes the ability to make choices, whereas knowledge and approval requires no more than the ability to understand and approve choices that have already been made. While making that very point in paragraph 62 of his judgment in Hoff v Atherton Chadwick L.J. expressed himself in terms which might be taken to suggest that full testamentary capacity is required for there to be knowledge and approval. However, as the Chancellor has pointed out, the mental capacity required for knowledge and approval was not in issue in that case and the decision does not support the proposition which Miss Reed sought to derive from that paragraph. I do not think that Chadwick L.J. was intending to say more than that a testator who does have full testamentary capacity at the time of executing his will and is aware of its contents is to be presumed to know and approve of them. That understanding is, in my view, supported by the examples he gave in paragraphs 63 and 64 of circumstances in which positive evidence of knowledge and approval is required.[65]In Williams, Mortimer and Sunnucks on Executors, Administrators and Probate, paragraph 13-01, the authors state that if a testator did not have testamentary capacity, he cannot have known and approved of the contents of his will. Miss Reed naturally relied on that statement, but coming, as it does, in the opening paragraph of the chapter, I do not think it is intended to be more than a general proposition which is subject to explanation and further exposition in later paragraphs. If the testator did not have testamentary capacity at any relevant time, it may be correct as it stands, but I do not think that it was intended to apply in the way Miss Reed suggested to situations of the present kind or that with which Parker v Felgate was concerned. If the testator had full testamentary capacity at a time when he gave instructions, it is possible that at a later date, when he had ceased to have full capacity, he intended to carry them out. Proof that that was his intention should not depend on his being capable of exercising judgment of the kind that is necessary for full testamentary capacity.[66]Mr. Randall placed some reliance on the case of Harwood v Baker (1840) 3 Moore P.C. 282, 13 E.R. 117. In that case the testator, having previously intended to distribute a large part of his property among his relations, made a will a few hours before his death in favour of his wife at a time when his mental faculties were impared by illness. The court pronounced against the will because it was not satisfied that it reflected his intentions. Erskine J. giving the judgment of the Privy Council (at that time the final court of appeal in England in probate cases) said at page 313:
“Now if their Lordships had found from the other evidence that Mr. Baker had, while in a state of health, compared and weighed the claims of his relations, and had formed the deliberate purpose of rejecting them all in favour of his wife, but had omitted to carry that purpose into effect before the attack of illness under which he died; and that during that illness he had acted upon that previous intention, and executed a Will in question,—less evidence of the capacity to weigh those claims during his illness might have been sufficient to show that the Will propounded really did contain the expression of the mind and will of the deceased.”
[67]Mr. Randall submitted that this observation provides an example of the earlier application of the principles later expounded in Parker v Felgate and may have provided the basis for Sir James Hannen’s judgment. That may be correct, but it is also of interest for the fact that, like Parker v Felgate itself, it does not draw such a sharp distinction between capacity and intention, but proceeds on the basis that if the testator made a considered decision at a time when he was of full capacity, it is likely to be easier to demonstrate that the will carrying that decision into effect reflected his intention at the time he made it.[68]In my view, once one recognises that the purpose of the enquiry into knowledge and approval is simply to ascertain whether the will represents the testator’s true intention, the decision in Parker v Felgate can be seen to be consistent with principle and I am therefore unable to accept this part of Miss Reed’s argument.[69]Miss Reed submitted, however, that even if Parker v Felgate is good law, it is necessary for the testator to have given settled instructions in relation to his property at a time when he had testamentary capacity and that Robert had not done so in the present case, as evidenced by the fact that following his receipt of the draft will Anne told his solicitors that there were some matters that were not clear or satisfactory and by his failure to take any further steps in relation to the execution of the will for over a year. Her argument, which was based on the third of the three situations envisaged by Sir James Hannen in Parker v Felgate, was that in the absence of settled instructions one cannot be satisfied that the will as executed reflected the deceased’s intentions.[70]In my view that overlooks the fact that in order to bring the case within the principles applied in Parker v Felgate it is necessary to show that the will as executed conforms to the instructions given to the draftsman and that the deceased understood that to be the case. In order to be able to invoke the principle, therefore, it must be possible to establish the testator’s original intentions in a form sufficiently certain to be capable of being embodied in a draft and of being compared with the document which is said to carry them into effect. Provided the deceased was capable at the time of execution of understanding that he had given instructions and intended to implement them, changes of mind in the meantime do not matter. Moreover, in the first and second situations described by Sir James Hannen the testator is capable of understanding the contents of the will and approving them. In such cases any need for settled instructions at an earlier date is overtaken by the deceased’s intention to execute a will which contains the provisions read over or summarised to him.[71]That, indeed, is what occurred in this case. The judge found that the will was summarised to Robert immediately before he executed it, that he was capable of understanding its provisions (which were simple and straightforward) and that he assented to them. In those circumstances, despite the long delay (of which he was very conscious) the judge was entitled to find that the will continued to represent Robert’s testamentary wishes, whether or not the instructions he had given some 15 months earlier could be described as settled and despite the lapse of time and the obvious opportunity for a change of mind. Miss Reed submitted that the judge was not entitled to find that Robert knew and approved the contents of the will because by that time he no longer had testamentary capacity, that being necessary in order to understand and approve the will. However, for the reasons given earlier, I am unable to accept that submission.[72]In my view the judge’s findings are not open to challenge and in the light of them he was right to pronounce in favour of the will, applying the principles in Parker v Felgate. For these reasons I too would dismiss the appeal. Lord Justice Jackson[73]I agree that this appeal should be dismissed for the reasons stated by the Chancellor.

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