Wills & Suspicious Circumstances

A recent judgment reconfirmed the relevance of the 19th century rule regarding wills made in ‘suspicious circumstances’.

In previous posts we have discussed Testamentary capacity – which is the ability of a person to make a valid will. The test for Testamentary capacity was  propounded in 1870 in the case of Banks v Goodfellow; the will-maker must:

  • Understand the fact they are making a will and the effects of this decision,
  • Understand the extent of property that will be distributed in the will,
  • Appreciate who will be inheriting what, and who, if anybody, will be left out of the will, and
  • Make decisions about various gifts in the will free from mental disorder.

If all of these factors are not present, the will-maker is not considered to have testamentary capacity.

Elias El Chami died in February 2014. Elias never married and had no children. In 1992 He created a Will appointing his brother Salim as the sole executor and beneficiary of his estate. If Salim died in the 90 days after Elias, Salim’s children Sonya and Samia would become joint executors and beneficiaries.

Ten days before he died Elias made a new Will naming his neighbour Elias Habib as a new sole executor and beneficiary.

Elias made the 2014 Will in unusual circumstances – In late 2013 he had suffered a head injury that affected his cognitive ability. Elias Habib invited an Arabic-speaking solicitor to prepare Elias’s new Will. The solicitor explained the will to Elias in Arabic given Elias’s limited English abilities. The solicitor obtained a medical certificate which stated that Elias was ‘physically unable, but mentally able to make…informed life decisions’.

Courts presume that a person making a will knows about the will and approves of its contents. However, when the testator makes that will in questionable circumstances, those presumptions of adequate knowledge and approval can be disputed.

The ‘suspicious circumstances’ rule originated in the 1838 case Barry v Butlin. However it has recently been broadened from issues of preparation and execution of a will, to challenging the presumption that a Will maker has adequate knowledge and approval of a Will’s contents, and whether the Will expresses the testator’s true testamentary intentions.

Elias’s brother Salim started an action but died during the course of proceedings, his children Sonya and Samia then successfully argued that Elias didn’t have testamentary capacity to make the 2014 Will as:

  • The witness to the will, did not witness any discussion of instructions regarding the contents,
  • The doctor assessing Elias’s mental capacity did not focus upon whether he held the specific capacity to give instructions for a will, and
  • The will purported to disinherit Salim, Sonia and Samia on the demonstrably false basis that they ‘did not take care of’ Elias.

In their findings the Court held that the 2014 Will was invalid and admited the 1992 Will to probate stating:

  • Elias lacked sufficient testamentary capacity as outlined in the test in Banks v Goodfellow: As his neighbor had ‘poisoned his affections’ and ‘perverted his sense of right’,
  • Elias’s mind, memory and understanding were influenced by a ‘delusional belief’ about his relationship with his brother that fundamentally influenced the 2014 will’s contents.


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