The court has to focus on the testator mental capacity at the time of making his will, since a man diminished in physical and even mental strength may nevertheless make a valid will, provided that he was in possession of his full capacity at the precise time of the writing of the will. In order to determine if Mr Watson lacked testamentary capacity at the time of the November will, both parties named a different expect to assess on that matter. Bearing in mind that none of the experts had seen Mr Watson as a patient during his life time, they concluded that at the time of the November will he was only affected with "mild dementia". The diagnosis of mild or even moderate dementia is not itself an obstacle to satisfy the requirement of testamentary capacity. Therefore, none of the experts could assure that John Watson lacked testamentary capacity the day he made the will.
[...] Conclusions on the November 2000 will 82. It is quite clear from the evidence of the lay and medical witnesses that John Watson's mental condition was deteriorating from the time of his first stroke and that by November 2000 he was suffering from mild to moderate dementia. Nevertheless I am satisfied that, on the occasions when he gave instructions for and executed his November 2000 will, he had the necessary testamentary capacity Mr Waterworth did not really focus on the first two limbs of the test in Banks v Goodfellow . [...]
[...] Janet records in her diary I really think the time's coming when his wish will be granted”. She did not visit him again until November 2000. Janet's attitude was clearly that her father's wishes should be respected. Janet's diary 42. Three further entries in Janet's diary at around this time are of relevance: “16th March: Phoned dad who rambled on about John [her husband] calling him the wrong title not a navigator in the war but a bomb pilot aimer Don't know what brought that on. [...]
[...] Both sides have commissioned a report from an expert consultant specialising in old age psychiatry. Neither side wished to cross examine the other side's expert The claimants commissioned a report from Professor Robert Howard, Professor of Old Age Psychiatry at the Maudsley Hospital in London. The defendants commissioned a report from Professor Robin Jacoby who is Professor Emeritus of Old Age Psychiatry at the University of Oxford. Both are extremely distinguished experts in their field Both experts expressed the view that at the time he executed the November will, John Watson had testamentary capacity, although Professor Howard considered he probably did not have testamentary capacity in March Both experts were given access to the witness statements in this case and the medical reports on John Watson. [...]
[...] The B12 and TFT were tests for dementia, were carried out and returned as normal. I think this indicates that there were two consultations I am faced with the contrasting recollections of Mrs Watson and Mr Harvey in relation to the upshot of Dr Chapman's consultations. Despite Mr Harvey's recollection, I do not consider it probable that Dr Chapman had expressed a concluded view that John Watson did or did not have sufficient capacity to sign a will on 14th March 2000. [...]
[...] The defendants are contesting the validity of the November 2000 will on the sole ground that John Watson lacked testamentary capacity at the time he made it. They apply the same argument to the March 2000 will, and expect the judge to pronounce in favour of the will dated 5th January 1998. The law as to testamentary capacity has been exposed in Banks v Goodfellow Cockburn CJ defined three requirements as to amount to testamentary capacity; testator shall understand the nature of the acts and his effects” . [...]
Bibliographie, normes APA
Citez le doc consultéLecture en ligne
et sans publicité !Contenu vérifié
par notre comité de lecture
