- Contentious probate—section 9 of the Wills Act 1837—capacity—knowledge and approval—pleading (Gardiner v Tabet)
- What are the practical implications of this case?
- What was the background?
- What did the court decide?
- Case details
Private Client analysis: The deceased executed a very short homemade Will from his hospital bed during the last weeks of his life. The defendants challenged the Will on three grounds: (i) the deceased had not signed it, (ii) he lacked testamentary capacity, and (iii) he did not know or approve of its contents. Prior to proceedings being issued, the attesting witnesses prepared statements giving details of the circumstances surrounding the preparation and execution of the Will, including that they had seen the deceased sign it. In their defence, the defendants did not simply put the claimant to proof that the deceased had signed the Will; they denied that the he had signed it. They pleaded, inter alia, that a relative had been present at the bedside throughout the material time and no Will had been executed in his presence—the implication being that the attesting witnesses, and possibly the claimant, were participating in propounding a fraudulent Will. No pleading of fraud or forgery was particularised. The case also contains a useful reminder of precisely what is required for testamentary capacity, and knowledge and approval, in the context of a testator with diagnosed mental illness. Written by Paul Burton, barrister at Radcliffe Chambers and counsel for the claimant.
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