People make wills when they are alive, to be read when they are gone. Wills are made to disburse and allocate the assets of the deceased, to those who remain. It’s important, therefore, that the will is valid. And one requirement for validity, is the mental state of the deceased when he made the will.
A mentally disordered person, suffering from a mental illness, may lack the capacity to make a valid will.
The key point, is the person’s mental state when the will was made.
The Mental State of the Testator / Testatrix
Let’s start with the right terminology.
The deceased, who made the will, is known as the testator (if he is a man), or the testatrix (if she is a woman).
The mental state of the testator/testatrix when the will was drawn up, read, and executed, is one of the most important issues.
If the testator was old, and suffering from senility, it may be that he signed the pages of the will, but he did not know its contents.
If the testator was suffering from a delusion, and he signed his name on the will in the belief he was issuing a royal decree as an ancient emperor from ages past, his will can be challenged.
If the testator signs a will disclosing preposterous clauses, such as allocating his wealth for the future colonization of Mars (not so preposterous, in the future?) then it may be evidence that his mental health was an issue.
Intermittent Mental Health IssuesProving Mental Illness of the Testator / Testatrix
A will can be challenged if the testator / testatrix can be shown to be mentally ill when the will was made.
A case to illustrate this is Louisa F. Strittmater’s will.
Louisa Strittmater was a spinster who never got married. When she died, her family was shocked to discover that she had willed everything to the National Women’s Party.
The family produced her private diary to show that she was suffering from a mental disorder. Some of the writings showed that she hated all men, including her father.
She also wrote on a picture of her mother, “The moronic she-devil that was my mother”.
The court found that she had a paranoiac condition, and that she suffered from insane delusions about men.
The court felt that her condition led her to will everything to the National Women’s Party.
Accordingly, the court set her will aside.
Consciousness of Testator when making the Will
In 1916, the Privy Council considered the appeal of Bankim Bihari Maiti v Srimati Matangini Dasi from Bengal.
Shiba Prashad Maiti, a rich man, passed away, leaving a will.
His nephew, Bankim Bihari Maiti, applied for probate.
Shiba died leaving behind his widow, a daughter from a previous marriage (Srimati), a brother, and the brother’s son (Bankim).
Under the will, Bankim, the nephew, would get much more than Srimati, the deceased’s daughter. Naturally, Srimati attacked the validity of the will.
Her attack was premised on the mental capacity (or lack thereof) of Shiba, when the will was made.
The subordinate court, which first heard the case, found that the will was valid.
On appeal, the high court overturned the decision. They said that Bankim failed to show the mental capacity of the testator.
The daughter called a local medicine man, who testified that he treated the testator (Shiba) for broncho-pneumonia up to the testator’s death. When he had left Shiba on 2nd December 1909, Shiba was in delirium, but conscious.
The will was dated 4th December 1909. Shiba’s signature on the will was not doubted.
However, the judges wondered whether Shiba’s signatures in the margins of the will had been signed before the will had been finalized.
Eight witnesses to the will gave evidence in court that they saw Shiba signing the will. All of them considered Shiba to have “testamentary capacity” and “understood what he was doing.”
On 5th December 1909, Shiba’s condition worsened, and he slipped in and out of consciousness.
In those days, a sub-registrar would go and see a testator or testatrix to explain the effect of the will, and confirm that the will was signed voluntarily. If satisfied, the sub-registrar would register the will.
The sub-registrar was asked by Shiba’s servant to go see Shiba to register the will, but because it was a Sunday, he declined to go.
So, on Monday, 6th December 1909, Shiba’s servant filed a petition to request the sub-registrar to go see Shiba, and register Shiba’s will.
But on 7th December 1909, the sub-registrar noted on the petition that the will hadn’t been registered, because the testator was unconscious, and subsequently died.
And then, on 20th January 1910, the sub-registrar received the will, and registered it.
Apparently, on 19th January 1910, Bankim presented the will to the sub-registrar.
The following day the testator’s widow, Barada Sundari Dasi, gave testimony that Shiba had executed the will.
And so it was registered.
The testator’s daughter denied that her father had signed any will. She said she had been with him, until he lost consciousness, and he hadn’t signed any will.
After a careful consideration of all evidence, the court decided that the will was valid.
This case shows that, in a court case that touches on the mental capacity of the testator/testatrix, all sorts of witnesses must be called.
The court will need to consider the testimony of witnesses, while also considering written evidence.
The Burden of Proof in Alleging Mental Incapacity
In 1947, an appeal from Nagpur was heard by the Privy Council.
In the case of Mst Gombitai v Kanchhedilal and Others (1947), the Privy Council considered the will of a man considered by his friends as dull-witted.
The following passage is useful:
The law is well settled that the onus probandi lies on the person who propounds the will, and this onus is in general discharged by proof of capacity, and the fact of execution, from which the knowledge and the assent to its contents by the testator will be assumed (Barry v Butlin, 2 Moore’s Privy Council Cases, p 480). But where a will is prepared and executed under circumstances which excite the suspicion of the court “it is for those who propound the will to remove such suspicion, and to prove affirmatively that the testator knew and approved of the contents of the document.” (Tyrell v Painton, 1894, L.R. Probate 151).
This means that, when a person is relying on the will, the person must show that the testator / testatrix had mental capacity to sign the will.
In 2007, there was a case where the deceased died, leaving half of her wealth to her two sons, and the other half to her grandchildren.
The problem was the deceased had 5 children, and 3 out of the 5 had been cut out from the will.
They challenged the will on the mental capacity of their mother.
This is a relevant passage from the case.
The principles of law which underlie my approach to the question of capacity may be stated as follows:-
(a) The burden is on the propounder of the Will to establish capacity;
(b) This remains the case even if the propounder has already obtained a grant in common form : see Halsbury’s Laws of England (4th ed) Vol 17(2) paragraph 269 n.6;
(c) Where a Will is duly executed and appears rational on its face, then the Court will presume capacity;
(d) An evidential burden then lies on the objector to raise a real doubt about capacity;
(e) Once a real doubt arises there is a positive burden on the propounder to establish capacity;
(f) The key authority on the nature of capacity remains Banks v Goodfellow (1870) LR 5 QB 549 and in particular the familiar passage at p 565 which I will forbear repeating;
(g) It is well to remember that the context of the passage was a case in which the testator (who made his will in 1863) had formerly been of unsound mind. He had been confined to the county lunatic asylum in 1841. When discharged he acquired the fixed delusion that a man called Alexander pursued and molested him, which persisted notwithstanding Alexander’s death. He believed he was pursued by visible evil spirits. He suffered from epileptic fits. But he was capable of managing his financial affairs, and gave coherent instructions for a Will at the same time as those for a lease, and as the taking of an account of rent due. The jury found for his will. The question for the Court was whether the delusions under which the testator laboured were fatal to testamentary capacity
” in other words, whether delusions arising from mental disease, but not calculated to prevent the exercise of the faculties essential to the making of a will, or to interfere with the consideration of the matters which should be weighed and taken into account on such an occasion, and which delusions had in point of fact no influence whatever on the testamentary disposition in question, are sufficient to deprive the testator of testamentary capacity and to invalidate a Will..” (ibid p.555).
(h) It was in this context that the Court pronounced the rule that the testator
“… 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…… if insane suspicion, or aversion, take the place of natural affection; if reason and judgement are lost, and the mind becomes a prey to insane delusions calculated to interfere with and disturb its functions, and to lead to a testamentary disposition, due only to their baneful influence – in such a case it is obvious that the condition of the testamentary power fails…”
From this passage it may be collected that there must be a causal connection between the delusion and the disposition is effected by the will, and that this is a question for the jury upon the whole of the evidence.
(i) From a later passage at page 570 it may be collected what is the proper approach:-
” No doubt, where the fact that the testator has been subject to any insane delusion is established, a will should be regarded with great distrust, and every presumption should in the first instance been made against it. Where insane delusion has once been shown to have existed, it may be difficult to say whether the mental disorder may not possibly have extended beyond the particular form or instance in which it has manifested itself. It may be equally difficult to say how far the delusion may not have influenced the testator in particular disposal of his property. And the presumption against a will made under such circumstances becomes additionally strong where the will is… one in which natural affection and the claims of near relationship have been disregarded”.
(j) In that last passage the Court appears to have had in mind the principle expressed in Harwood v Baker (1840) 3 Moore 282 at 297
” that in all cases the party propounding the Will is bound to prove, to the satisfaction of the Court, that the paper in question does contain the last will and testament of the deceased, and that this obligation is more especially cast upon him when the evidence in the case shows that the mind of the testator was generally, about the time of its execution, incompetent to the exertion required for such a purpose…”
For a will to be considered valid, the court must first consider the mental state of the testator / testatrix.
Wills are important, but there is a chance that a will could be abused.
This includes getting a mentally ill person to make a will.
As the article shows, this can be a good grounds for a challenge against the will.
Thanks for reading.
This article has been prepared to provide general information only and is not intended to serve as legal advice. Your case might be different, and we are not your lawyers. In case you’re interested in the topic above, please consult with a practising lawyer. We welcome your enquiries.