DAVID-KRATOS NOTES ON TESTAMENTARY CAPACITY

The Testamentary Capacity (Animus Testandi)

It involves the intention of the testator to make the document in question to constitute his last
will upon his death. Ascertaining the intention involves the discourse of the mind of the testator
at the time of the execution of the will.

Whether there is testamentary capacity is a question of fact to be affirmatively proved by the

propounder of the will.
Where the will appears rational and duly executed, it is presumed that the testator had the
necessary mental capacity.

Parents v Holland- The legal effect of a lack of testamentary capacity operates to invalidate the
will.

The capacity to make wills involves a consideration of two main issues-

(a) possible subjects of dispositions by will, and
(b) the personal capacity of the would-be testator to dispose of property which could properly be
the subject of testamentary disposition.

A customary law will is referred to as samansiw.

The principle of nemo dat quod non habet applies in the making of wills.

The general test as to mental capacity was laid down by Cockburn J. in Banks v. Goodfellow
(1) understand the nature of the act and its effects:
(2) shall understand the extent of the property of which he is disposing.
(3) shall be able to comprehend and appreciate the claims to which he ought to give effect; and
(4) with a view to the latter object, that no disorder of the mind shall poison his affections,
prevent 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.

Section 1 of the Wills Act, 1971, provides that a person may make a will 'disposing of any
property which is his or to which he may be entitled at the time of his death or to which he may
be entitled thereafter.' This also goes to show that wills are ambulatory. Under section 13 of the
Wills Act, 1971, there is a power in the Court to provide for certain dependants out of the estate
if a satisfactory provision is nor made for them in the will or otherwise.

“Pretermitted child statutes” - Are statutes, a child or issue, who is not mentioned in the will of
his or her parent or grandparent, is entitled to the share he or she would have received in the
event of intestacy.

Section 13(1) of our Wills Act, 1971, reads: 13(1). If, upon application being made, not later
than three years from the date upon which probate of the will is granted, the High Court is of the
opinion that a testator has not made reasonable provision whether during his lifetime or by his
will, for the maintenance of any father, mother, spouse or child under 18 years of age of the

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testator, and that hardship will thereby be caused. the High Court may. Taking account of all
relevant circumstances, notwithstanding the provisions of the will. make reasonable provision for
the needs of such lather, mother, spouse or child out of the estate of the decease.

The extent to which a person may dispose by will of his property is subject, in the case or
immovables, to the law of the place where they are situated, (Nelson v. Bridport) and in the case
of movables on the law of the domicile of the testator at his death. (Lynch v. Provisional
Government of Paraguay (1871))

The capacity to make statutory wills is not derived from the customary law but is conferred by
section I of the Wills Act. 1971.

Personal Capacity
To be able to make a valid will in Ghana, the testator must be at least 18 years old. Section 1 of
the Wills Act, 1971, provides that Any person of or above the age of eighteen can make a will. A
member of the Armed Forces while engaged on active service is competent to make a privileged
will even if he is under 18 years of age. There is an over-riding provision in section 6(1) of the
Wills Act, 1971, that "any member of the Armed Forces of whatever age may, while engaged on
active service, make a will.”

Soundness of Mind
It is necessary for the validity of a will that the testator should be of sound mind and
understanding." A subsequent insanity, however, cannot revoke a will already competently
executed

Intention: Soundness of mind is essential for the making of a will because there must exist, at the
time of making it, an intention to make a will or the animus testandi. The animus testandi can
only be formed by a person of sound mind. The animus testandi implies that:
(a) the testator possesses a sufficient mental capacity to understand and appreciate the nature
of the act in which he is engaged, that is, he must know that he is making a testamentary
disposition, that is a disposition of property to take effect upon his death:
(b) the testator must be free from any vitiating mental disorder; and
(c) ) The testator must be acting in the free exercise of a genuine choice in making the will.

If the court is not satisfied that the testator intended to make a will, that is if not satisfied about
the existence of the animus testandi, it will not admit the document to probate. If all the
formalities of a will have been followed, the court would admit extrinsic evidence to help it
determine the true intention.

In the Goods of Slinn the document was executed as a deed but also complied with the Wills
Act. The court admitted evidence which showed that the testatrix intended to make a will.

If the document appears on the face of it to be a will and it complies with the formalities under
the Wills Act, it is presumed that the maker was of a sound mind and intended to make a will.
These presumptions can only be rebutted by appropriate evidence of a contrary intention.

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In Smee v Smee it was held -The fact that a man is capable of transacting business, whatever its
extent, or however complicated it may be, and however considerable the powers of intellect it
may require, does not exclude the idea of his being of unsound mind.

In Banks v. Goodfellow, Cockburn LJ said, as to the testator's capacity, he must, in the language
of the law. have a sound and disposing mind and memory. In other words, he ought to be capable
of making his will with an understanding of the nature of the business in which he is engaged. A
recollection of the property he means to dispose of, of the persons who are the objects of his
bounty, and the way it is to be distributed between them. It is not necessary that he should view
his will with the eye of a lawyer and comprehend its provisions in their legal form. It is sufficient
if he has such a mind and memory as will enable him to understand the elements of which it is
composed and the disposition of his property in its simplest form

The implication of the test

(i) that the testator is aware that he is making a testamentary disposition of his assets, though he
might not know that he is legally making a will.
(ii) that he has his property in his mind:
(iii) that he has the beneficiaries in his mind; and
(iv) that the manner of distribution among the beneficiaries is determined by him.

Where a delusion does not affect the testator's property or the objects of his bounty, it will not
disqualify him from making a valid will.

Re Bohrmann," the testator wrongly believed he was under persecution by the London County
Council. He was sane in all other respects but went off gear whenever the London County
Council was mentioned or involved. It was held that this insane delusion did not invalidate a will
made by such a testator.

Delusion is a question of fact.

The rule in Parker v. Felgate is that if a testator was competent when he gave instructions to his
solicitor to prepare his will and the will is prepared in accordance with those instructions, the
will is valid even if the testator became incompetent at the actual time of its execution.

It has, however, been stated by the Privy Council in Battan Singh V Amirchand that the rule
in Parker v. Felgate should be applied with the greatest caution and reserve, especially when the
testator does not give the instructions directly to the solicitor who draws the will, but to a lay
intermediary who repeats them to the solicitor

According to Kludze, the provisions of section 1 of our wills act operates to defeat the rule in
Parker v Felgate.

Proof of Soundness of Mind:

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1. The rule propounded in Barry v. Butlin' by Baron Parke is that:

"The onus probandi lies in every case upon the party propounding a Will; and he must satisfy the
conscience of the Court that the instrument so propounded is the last Will of a free and capable
Testator.

2. Although the general position is as just stated above, if on the face of it the will appears to be
rational, the court may presume the sanity of the testator. 'S In that event, the burden shifts onto
the party disputing the validity of the will and he must show by acceptable evidence that the
testator lacked the mental capacity generally or at the time he purported to make the will in
question.

3. If evidence is adduced that the testator was generally of unsound mind, then the onus reverts
to the person propounding the will to show that, at the material time when the will was made, the
testator had the requisite mental capacity. ( Cartwright v. Cartwright)

4. In a case where the will is on the face of it irrational, the court starts with the rebuttable
presumption that the testator was of unsound mind and the will cannot be admitted to probate
unless the presumption is dislodged. (Harwood v Baker)

Eccentricity or foolishness is not enough to invalidate a will. (Pilkington v. Gray)

5. there is a rebuttable presumption of the continuance of a mental state. whether of mental

capacity or incapacity. Therefore, if the testator is first proved to be of the requisite
mental capacity at some time before he made the will, then, until the contrary is proved, it
will be presumed that he continued to be of that sound state of mind when he made the
will."
6. the law presumes sanity, and no evidence is required to prove the testator's sanity if not
attacked.

Drink and Drugs: There is no presumption that a habitual drunkard lacks the requisite mental
capacity to make a will. However, if he was not sober when the will was made, probate of the
will may not be granted unless evidence is adduced in proof that the testator was not deprived of
the necessary mental capacity at the time, he made the will.

In Re R a will was challenged on the grounds that the testator had been a drunkard. The
challenge failed as it could not be proven that drinking had affected the testator's judgment.

In Ayrey v. Hill ((1824) 162 ER 269) an intoxicated testator was held to possess testamentary
capacity,

Old Age and Infirmity: Old age and infirmity are not generally grounds for setting aside a will.
It is relied upon to buttress other grounds such as that the testator's will was overborne or that
there was undue influence. If, however, there is a specific allegation that the testator

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could not have knowledge of the contents of the will because of his age or infirmity, or that on
account of age or infirmity he could not have the animus testandi, then the court will take
evidence of the testator's mental state.

In Battan Singh v. Amirchand (1948) A.C. 141 a will made by a testator during the terminal
stages of consumption was refused probate because the testator was so weakened by the disease
that he was no longer of sound mind.

In Re Cole, the testator, while suffering from stole gave instructions for a will to be drawn up; he
later acknowledged his signature in the presence of two witnesses. It was argued at trial that the
testator was so paralysed and incapable of speech that he could not have dictated instructions for
his will and was even incapable of signing his name. It was further urged that undue influence
had been exercised on the testator by one of the beneficiaries. The court found that the testator
had a sound disposing mind, notwithstanding his affliction. After reviewing the requirement of a
sound disposing mind, the court conclude that if the will was shown to have been drawn up in
accordance with instructions given while the testator was of sound disposing mind, it would be
sufficient that while executing it the testator appreciated that he was executing a will draw up
according to his instructions.

The exclusion of close relatives from a will not, however, raise the presumption that the testator
lacks sound understanding. What matters is whether the testator appreciated, at the time of
making the will, that he was excluding certain individuals although he knew exactly who they
were and the nature of their moral claims.

In Boughton v. Knight Sir J. Hannen said that provided a testator has testamentary capacity he
"may disinherit ... children, leave property to strangers in order to gratify spite, or to charities to
gratify pride."

Harwood v. Baker - In that case, the testator had while on his deathbed made a will leaving the
entirety to his estate to his second wife. All other members of his family were excluded. While
making the will the testator had been in state of extreme weakness from a brain disease. It was
held that the testator was incapable of making a will as he could not comprehend the claims of
his other relatives and that it was insufficient merely to show that the testator knew he was
giving his properties to his second wife; evidence had shown that the disease produced torpor of
the brain and that the testator did not have sufficient recollection of other members of his family.

Blind man: A blind man can make a will, provided he knows and appreciates what he is doing. In
the Ghanaian case of Baksmaty v. Baksmaty, it was held that although the testator was totally
blind, and his hand was guided to the spot where he signed, his will was valid because it was
read out to him, and he approved it.

In Christian v. Instiful, the 'testator was an old man, almost 90 years old, and had a defective
eyesight. It was, however, held that a will made by him was valid, as he appeared to know and
understand its contents. Of course, in this case the court was admittedly influenced by the nature
of the dispositions in the will, which were detailed and rational.

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Married Women: A married woman in Ghana is competent to make a will.

A Will must be Freely Executed. a will must be the free exercise of the wishes of the
testator.

all, this implies that the testator must know the contents of the document to which he is affixing
his signature. Secondly, the making of the will must not have been the result of duress, force,
fraud, fear, undue influence or undue pressure.

As section 1(3) of the Wills Act, 1971, says: A will, or any provision of a will. obtained by fraud
or made under duress or undue influence, shall be void

Knowledge of Contents:

He must also know the full contents of the document he is executing and must understand and
appreciate the extent and nature of the property of which he is disposing and the way he is
disposing of it. However, as stated in Banks v. Goodfellow.
it is sufficient if the testator understands the general effect of his will without fully appreciating
the legal effect or significance as would a lawyer.
Furthermore, where no objection is taken on the grounds of mental incapacity, it will be
presumed that the testator knew and understood the contents of his will.

The rule is that a will made on the instructions of a blind or an illiterate person must be read and
explained to him before its execution.
In fact, this has a statutory force in Ghana under the provisions of Order 60, Rule 29, of the High
Court (Civil Procedure) Rules.

It is also contained in section 2(6) of the Wills Act, 1971. The persons who read and explained
the will must so declare in writing on the will.

It is also contained in section 2(6) of the Wills Act, 1971. The persons who read and explained
the will must so declare in writing on the will.

Christian v. Intsiful- a man aged almost whose eyes were defective, handed over to a typist for
typing a document which was his will. After typing, the old man executed the will in the
presence of two attesting witnesses. The will appeared normal and raised no doubts in anybody's
mind. It was held by the Privy Council that the will was admissible to probate, and one reason
for the decision was that the will was detailed and rational.

Eshun v. Pantsiwa," where probate of the will was refused because, although the testator could
sign his name, there was no evidence of his illiteracy beyond writing his name, and there was no
evidence that the will was read and explained to him.

Coercion: Where there was coercion from force or fear, the will could not have been freely
executed and so cannot be upheld,

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Undue influence - it was the rule that it would not be presumed but must be positively proved,
but this is no longer wholly accurate. In Parfitt v. Lawless," the beneficiary under a disputed will,
a Roman Catholic priest, had lived with the testatrix and her husband and was their confessor. It
was held that there was no undue influence, even though the testatrix had left all her residuary
estate to the priest.

Animus testandi is negatived where the testator is coerced or forced into signing a document
ss his will.

Lord Penzance provided the classic definition of undue influence in Hall v. Hall when he said:
"In a word a testator may be led but not driven, and must be the offspring of his own volition,
and not the record of someone else's." Where undue influence is claimed the burden of proof lies
on the party making the allegation.

In Mercer v. Brempong the court said, "undue influence means any influence by which the
exercise of free and deliberate judgment is excluded at a time when some interest or benefit is
given to another by someone over whom such influence was exercised."

In Moneypenny v. Brown a will was held invalid because of the testator's wife importuned him
and guided his hand while executing his will.

In Mynn v. Robinson where a woman made her husband sole executor and left him all her
property, it was held that she had been under the undue influence of the husband. The exercise of
immoral influence dyer the testator does not appear to constitute undue influence if the testator
genuinely desires to leave his property to a harlot.

In Wingrove v. Wingrove it was stated that if a man became caught in the toils of a harlot' who
induces him to make a will in her favour to the exclusion of his wife and children, this would not
constitute undue influence.

Re Harden a spiritual medium 'transmitted messages' from the nether world because of which the
testatrix executed two wilts, making the medium a substantial beneficiary of her estate. The court
held that the medium had taken control of the testatrix's mind as result of which the resulting
wills were not a record of the maker's mind.

BRIEFS.
In the Estate of Park, the testator had made a will after suffering a stroke which left him
occasionally eccentric, Afterwards, he married plaintiff and on the day of the wedding he
executed another will leaving a portion of his estate to the plaintiff.
The trial court refused probate on the ground that the deceased lacked testamentary capacity.
Plaintiff sought a declaration that her marriage to the deceased was valid; under section 18 of the
Wills Act, 1837 the marriage had the effect of revoking the will That deceased had previously
made. It was held that the marriage was valid as it was a simple contract not requiring a high

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degree of intelligence to comprehend. However, the court observed that the same cannot be said
of a will which frequently involves complex arrangements.

In Cartwright v. Cartwright (1793) 1 Phill 90 suggest that if a testator suffering from mental
illness makes a rational will without assistance, that constitutes good proof of a lucid interval. In
that case, testatrix had been insane for some twenty years prior to her death. She destroyed a will
she had made before the onset of mental illness. In the final year of her life, she asked for pen,
ink and paper and wrote out a perfect will in which she preferred her nieces of a sister of the
whole blood to other nieces. The will was held to be valid. The court observed that if a will is
made by a mental patient with lucid intervals and it was uncertain whether the will had been
made during such an interval, such will hold valid if it was so framed as to show no evidence of
mental disorder.

Banks v goodfellow- In that case the testator had delusions that he was being followed by evil
spirits and molested by a dead man. He made a will and died while afflicted by the delusions.
The will was held to be valid as the delusions could not have had any effect on the dispositions
and on those he should have considered.

Dew v. Clark under broadly similar circumstance where a testator had excluded an only daughter
from benefiting under his will. It was shown by extrinsic evidence that the testator lacked
testamentary capacity as he had had an irrational dislike of the daughter and refused to see her
during the first few years of her infancy. The will was held to be invalid as the delusion had had
a direct effect on the dispositions.

In Bull v. Fulton testatrix left the bulk of her estate to her grandnephew. Two nephews
challenged the will. Evidence showed that for several years prior to her death the testatrix had
been deluded that the nephews were forging her signature on vital documents. She consequently
excluded them from her will although they had previously been the main beneficiaries. It was
held that unfounded belief of forgery and deceit amounted to insane delusions and rendered the
will invalid.

Re Nightingale The testator had made his son the major beneficiary of his will. While recovering
in hospital following an operation to his lung and being visited by his son, testator formed the
delusion that his son was trying to murder him because the son tried to reposition him to help his
breathing. Consequently, he executed another will and revoked the previous gift to the son. It
was held that the second will was invalid as it was based on the father's unfounded belief that the
son was trying to murder him.

In the Goods of Hunt is illustrative of a mistake involving the entire will. A woman prepared two
wills for herself and the sister. but mistakenly executed the sisters. Probate was refused on the
ground that the testatrix would not have executed the will if she had known that it was her
sister's.
Similar facts and issues faced the court in Re Meyer where the will was similarly refused
probate. In cases like these, it may be said that the testator does not have the necessary

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knowledge and approval of the document.

In Re Phelan the testator purchased pre-printed forms from legal stationery and made four
separate gifts on separate forms, executing 'them on the same day. Each form had a revocation
clause. It was argued that only the last gift was admissible to probate as the previous gifts had
been revoked; and upon that argument it was held that the testator did not know or approve the
contents of the wills as far as the revocation clauses were concerned. Therefore, all four
wills were admitted to probate without the revocation clauses.

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