Testamentary Capacity Test In Spotlight In High Court Will Dispute

Clarity Provided On Case Related To French Property Gift


A High Court ruling in a Will dispute case related to foreign succession law has provided clarity around the relationship between testamentary capacity and the level of knowledge a person would need to have regarding the consequences of their Will’s terms.

Brennan v Prior and Others (2013) related to a terminally ill man who executed a Will on a form purchased from a stationery store less than a fortnight before his death. The document included leaving a cash gift to his illegitimate daughter and a French property to his sister who had looked after him during his illness.

The claim in the case was brought by the daughter, who challenged the terms of the Will stating her father was aware of succession laws in France which would mean she could gain ownership of the property.

She stated that this was evidence that her father lacked understanding of the effect of his Will, which is one aspect of the common law test of testamentary capacity.

Sitting as Deputy Judge, Mark Herbert QC ruled that the testator – the father – had testamentary capacity, stating that the test for such matters did not extend to the requirement for knowledge of succession laws in jurisdictions related to gifts in Wills.

He stated that he was satisfied that the evidence demonstrated the father knew and approved of the contents as signed, while adding that he thought it was surprising the family had organised the preparation of a homemade Will rather than seeking professional advice on the issue.

Expert Opinion
This case is an interesting one which provides some clarity regarding how the common law test related to testamentary capacity should be enforced, as well as what it is reasonably expected that a person drafting a Will may know about the implications of the contents of the document.

"The ruling highlights that the judge was content that the father involved in this case was fully aware of the decisions he was making, even though they would run contrary to recognised laws in France.

"However, one matter the judge was less content with related to the use of a homemade Will, rather than a document drafted and prepared through consultation with professional, legal advice.

"This kind of case shows how invaluable it can be to take to expert Will writers to ensure that such a document is not only accurate and comprehensive, but also clearly outlines a person’s wishes.

"Another important step for a person drafting a Will to take is to speak to loved ones about the decisions they have made and why. By keeping people fully informed on the issue, you can spare friends and family a lot of heartache and potentially costly disputes in the long run."
Paula Myers, Partner