“I have been advising Mr Ball and his wife concerning allegations of incest made against him by their daughters Barbara and Debra. The son Nigel also laid allegations of buggery and indecency against Mr Ball but the Crown Prosecution decided not to proceed with these. In 1988 Debra Ball was involved with false allegations of robbery and rape concerning her husband. When this matter was investigated by the Police various allegations of incest against Barbara and Debra came out. At the time all members of the family agreed that the allegations of incest against Barbara and Debrah would not be pressed and the Police would not be involved in laying charges. In 1991 there was a family argument at the home in about June or July involving Nigel. As a result of this argument Barbara, Debra and Nigel split from the remainder of the family and pressed very public and damaging charges against Mr Ball. It would appear that at least some of those charges were totally unfounded. For this reason Mr and Mrs Ball have decided not to leave any of their Estate to Barbara, Debra or Nigel.”
“The Defendant admitted to incest and indecent assault on his eldest daughter, and indecent assault against a younger one; both the girls were said to be over 13 years when the incidents took place.”
“Intellectually, in view of the Guilty Pleas, Mrs Ball has had to accept that the assaults took place, but emotionally she finds it most difficult. She tends to allay doubts by believing that the passage of time has caused the daughters to exaggerate their experiences. [ … ] She remains supportive of her husband, and places much value on what she believes to have been and still is, a mutually settled and stable relationship. The undertones that the father was sexually abusing his daughter Debrah, surfaced in about 1978, but the atmosphere returned to “normal” after the intervention of Social Services. Matters surfaced again in 1986 when the eldest daughter spoke on the subject to her doctor, and Mrs Ball was informed. [ … ] Following another dormant period, the matter finally erupted in 1991 when the Police were involved. The Defendant and his wife emphasised that during the last two times both the daughters and one particular son had personal marital difficulties. In their opinion the Defendant’s offences were used to excuse their own outbursts and predicaments, although no explanation why their problems should take this course, was made.”
“[The testatrix]’s mental state was impaired in the sense that she was misled as to crucial facts by [her husband], and she would not have reached those conclusions had she not been misled. Her state of mind was such that her capacity was lacking, because of the serious misapprehension under which she was labouring.”
“In order that a testator may make a valid will it is essential that he should understand the nature of the act and its effect, be able to appreciate the claims to which he ought to give effect and understand the extent of the property of which he is disposing. Thus the intellectual understanding required for testamentary capacity is somewhat different from that required for ordinary contracts, since it includes, for example, appreciation of the claims of possible beneficiaries. [ … ] The burden of establishing testamentary capacity is on the person propounding the will.”
“119. It will thus be seen that in acting as she did, Mrs Latimer was motivated by factors which were the product largely (if not wholly) of misapprehensions. These misapprehensions were the result of her dementia and the effect of it upon her cognitive faculties. In short, she reached false conclusions concerning the Walters’ behaviour, which led to her disillusionment with them at the time of the will. These false conclusions were ones which I find she would not have reached but for her impaired mental state. 120. In those circumstances, it seems to me that she lacked testamentary capacity to make the will which she did in October 2004. It follows that I should pronounce against that will and pronounce in favour of the earlier Will; that is to say, the 1998 will. I do so. 121. There are two other points that I should mention. 122. The first is that I was referred to Boughton & Marstonv Knight & Others (1873) LR 3 P & D 63, in support of the proposition that, before I can find on the basis of a delusion, I must be satisfied that no man in possession of his senses could have believed what it was that Mrs Latimer believed. The answer that has to be given, when one asks the question could such a man have believed that, has to be: I cannot understand it; that is to say, cannot understand how anyone could have reached that view. 123. I doubt very much whether that is the test that applies when there is medical evidence explaining the effect of a condition such as dementia when ultimately the question that has to be asked is: was the mental impairment such as significantly to undermine the deceased’s proper appreciation of the calls upon his or her bounty? It is possible to conceive of cases where the impact upon the deceased’s cognitive powers may be highly significant without the deceased crossing the boundary of reaching conclusions which no reasonable person could have reached. The test in Boughton & Marston is applicable when there is no supportive medical evidence of the kind that there is in this case explaining how it is that the cognitive faculties of a testator can be impaired in consequence of a recognised medical condition.”
“The factors weighing against a conclusion that Mr Key had testamentary capacity are as follows. First, the preponderance (in terms of reliability) of the evidence about his behaviour between the date of his wife’s death and the making of the 2006 Will is, as I have explained in detail, probative of a conclusion that Mr Key was indeed devastated by his bereavement. It was in my judgment a severe affective disorder, perhaps sufficient on its own to have deprived him of testamentary capacity, but probably sufficient in combination with his mild pre-existing cognitive impairment. In that respect, I agree with Professor Jacoby that the cognitive impairment was probably insufficient on its own to deprive Mr Key of testamentary capacity, despite the developing short-term memory loss from which he was already suffering.”
“278. In all the circumstances, I conclude that Mrs McCabe decided to disinherit Timothy because she believed that he had initiated, without her agreement or authority, a police investigation into her affairs and finances which brought Stephen within its reach, and made allegations in respect of him which suggested that he had misappropriated her money. This was not a delusion or a confabulation. Her belief was justified by what had happened. An investigation had been commenced, with Stephen as ‘the potential suspect’, in which potential criminal offences were to be investigated, and Stephen’s arrest was contemplated. Timothy had instigated it, and she had not agreed to it.”
“Having regard to the nicety of the considerations which arise when mistake is said to amount to delusion, and when mistake so described is relied upon as evidence of mental and soundness testamentary incapacity, it is necessary here to consider closely the actions of the testatrix, the position of the parties, and the events dealt with in the explanatory clause.”
“The case against the will of 1927 was presented under two heads. It was contended that the testatrix was actuated in the whole transaction by an unfounded belief amounting to a delusion. It was also argued that the evidence showed a failure of memory in the testatrix in the very matter out of which her decision to make a new will arose, namely, her determination that her daughters and their respective families should be equally benefited by dispositions. The testatrix, it is said, was proved beyond all question to have acted under a grievous mistake as to the relative amounts of the monetary benefits the daughters, respectively, had derived from their parents.”
“The question, again, is not whether the will is avoided by a mistake of fact. Mere mistake of fact as to persons or property would not stand in the way of probate. Even in the jurisdiction of this court in equity mistakes of fact can only be depended on to a limited extent as a ground for rectification or modification of acts intentionally and definitely done. The crucial subjects of enquiry in the case of these: did the testatrix make her will of 1927 revoking her will of 1922 under a supposition that the reapportionment made by the later will was required to restore equality, and was this supposition an insane delusion upon which her testamentary action in 1927 proceeded or an illusory belief of such a character as, having regard to the facts of the case must be held to displace the prima facie proofs of testamentary capacity?”
“Looking at the facts as a whole, it appears to me to be clear that in the summer of 1927 there sprang up in the mind of the testatrix an entirely illusory belief to the effect of the statement she made to Miss Woolridge [a witness], and that this illusory belief supplied the main motive for the decision of the testatrix to call in Mr Gocher [the solicitor] and with his help to make the new will. Further, I am satisfied that the memory of the testatrix had so failed by this time that she could no longer call to mind the facts of her past actions towards her daughters so as to displace illusory notions and beliefs. I must find, then, that the testatrix had not in or after July 1927 the sound memory which in testamentary matters is essential to a disposing mind and understanding. I therefore propound against the will and codicils of 1927 and 1928.”
“It was common ground between counsel that the modern approach to determining the issue of knowledge and approval is for the court to consider as a single question whether the testatrix understood what she was doing and its effect so that the will concerned represents her testamentary intentions…”
“17. Nevertheless the reasonableness of the deceased’s decisions are undoubtedly capable of being a factor for consideration within section 3(1)(g), and sometimes section 3(1)(d). Moreover, there may not always be a significant difference in outcome between applying the correct test contained in the Act, and asking the wrong question whether the deceased acted reasonably. If the will does not make reasonable financial provision for the claimant, it may often be because the deceased acted unreasonably in failing to make it. For this reason it is very easy to slip into the error of applying the wrong test. It is necessary for courts to be alert to the danger, because the two tests will by no means invariably arrive at the same answer. [ … ] 20. [ … ] There is no requirement for a moral claim as a sine qua non for all applications under the 1975 Act, and Oliver J [in Re Coventry] did not impose one. He meant no more, but no less, than that in the case of a claimant adult son well capable of living independently, something more than the qualifying relationship is needed to found a claim, and that in the case before him the additional something could only be a moral claim. That will be true of a number of cases. Clearly, the presence or absence of a moral claim will often be at the centre of the decision under the 1975 Act. [ … ] 46. More critically, the order under appeal would give little if any weight to the quarter of a century of estrangement or to the testator’s very clear wishes. The Court of Appeal indeed offered the view (at para 51) that these factors counted for little, and that Mrs Ilott’s lack of expectation of any benefit from the estate was likewise of little weight, in part because the charities had no expectation of benefit either. Those observations should be treated with caution. The claim of the charities was not on a par with that of Mrs Ilott. True, it was not based on personal need, but charities depend heavily on testamentary bequests for their work, which is by definition of public benefit and in many cases will be for demonstrably humanitarian purposes. More fundamentally, these charities were the chosen beneficiaries of the deceased. They did not have to justify a claim on the basis of need under the 1975 Act, as Mrs Ilott necessarily had to do. The observation, at para 61 of the Court of Appeal judgment, cited above, that, because the charities had no needs to plead, they were not prejudiced by an increased award to Mrs Ilott is, with great respect, also erroneous; their benefit was reduced by any such award. That may be the right outcome in a particular case, but it cannot be ignored that an award under the Act is at the expense of those whom the testator intended to benefit. 47. [ … ] Lastly, for the reasons adverted to above, it was not correct that so long and complete an estrangement was of little weight. The Court of Appeal suggested that this was so because (a) the claimant had not wished for the estrangement, (b) she had made a success of her life as a mother and home-maker and (c) it might well be that the estrangement was not really a matter of fault on either side, thus simply, in effect, a sad fact of family life. [ … ] These matters of conduct were not irrelevant, but care must be taken to avoid making awards under the 1975 Act primarily rewards for good behaviour on the part of the claimant or penalties for bad on the part of the deceased.”