In most cases an executor propounding a will pleads that at the time of execution the deceased had testamentary capacity. However, if a testator has lost capacity by the time the will is executed, the rule in Parker v Felgate (1883) L.R.8P.D.171 provides that it is enough that the testator understands they are executing a will for which they have previously given instructions.
Georgina Compton (the deceased) died on September 2, 1882. Earlier that year the deceased had been diagnosed with Bright’s disease and had met with her solicitor Mr Parker on several occasions; instructing him that she wished to leave 500 pounds to her father, and 250 pounds to her brother, with the residue of her estate to be left to the Hospital for Sick Children in Great Ormond Street.
The deceased had previously loaned money to her father and brother in order to satisfy their creditors and prevent their bankruptcies. In the course of the interviews with Mr Parker the deceased was concerned that her father and brother might become bankrupt.
Following the interview Mr Parker prepared a draft will and went on holiday. The deceased became very ill and her brother and father were bankrupted. Mr Ponsford a partner in Mr Parkers legal practice prepared a will following the deceased’s instructions, Mr Parkers draft will and a draft bill of costs for preparing the will.
Mr Ponsford included clauses that in the event of a bankruptcy of the deceased’s father and brother or if the Hospital for Sick Children in Great Ormond Street was unable to take its legacy the residue of the deceased estate should be distributed amongst her next of kin.
On 26 August the deceased fell into a coma but was roused sufficiently on 29 August to direct Mary Ann Flack, to sign the will on her behalf.
Two doctors gave evidence that the deceased opened her eyes, put out her hand, and smiled; the will was rustled in front of her face, and one of the doctors said “This is your will. Do you wish this lady (Mrs. Flack) to sign it?” And that the deceased replied, “Yes”
As far as the doctor could judge there was no doubt that the deceased understood what she did.
The issue to be decided by a jury in Parker v. Felgate was whether Georgina Compton was competent to make her will.
The plaintiffs, as executrix and executor, propounded the will dated the 29th of August, 1882, of Georgina Annie Stephens Compton, late of No. 16, Upper Gloucester Place, Dorset Square, widow, deceased, who died on the 2nd of September, 1882.
The statement of claim stated inter alia that the will was signed
“ for the said deceased by Mary Ann Flack in the presence of and by the direction of the deceased.”
William Felgate, the deceased’s father and John Tilly, the trustee in bankruptcy of the deceased’s father and brother, (the defendants) pleaded separately that
- the will was not duly executed,
- the deceased was not of sound mind, memory, and understanding at the time of the execution of the will, and that
- she did not know and approve of the contents of the will.
The Court expressed that the following possible states of mind are sufficient to establish capacity:
- If a person has given instructions to a solicitor to make a will, and the solicitor prepares it in accordance with those instructions, all that is necessary to make it a good will, if executed by the testator, is that he should be able to think thus far, ‘I gave my solicitor instructions to prepare a will making a certain disposition of my property. I have no doubt that he has given effect to my intention, and I accept the document which is put before me as carrying it out.’
- Even if she could not recollect all that had gone between her and the solicitor, she was in a condition, that if each clause of this will had been put to her, and she had been asked, ‘Do you wish to leave So-and-So so much?’, or ‘Do you wish to do this?’ (as the case might be) she would have been able to answer intelligently ‘Yes’ to each question.
- A person might no longer have capacity to go over the whole transaction, and take up the thread of business from the beginning to the end, and think it all over again, but if he is able to say to himself, ‘I have settled that business with my solicitor. I rely upon his having embodied it in proper words, and I accept the paper which is put before me as embodying it’.
The summing up continued:
Parker v Felgate and Tilly (1882-1883) LR 8 PD 171
“If Mr Ponsford only inserted these clauses because he believed the testatrix would approve of them that would not be sufficient. To make the clauses good there must be either instructions previously given or the will as drawn must be afterwards acknowledged or approved. If you believe that there were such instructions, then the will only expresses her intention and carries out her instructions, and the clauses cannot be rejected.”
The Jury accepted that Georgina Compton had testamentary capacity when she gave her instructions to Mr. Parker, recalled giving those instructions and understood that she was executing a Will, even though she could not remember the exact terms or understand the contents of the Will when it was read out to her.