Perrins v Holland & Ors

Full testamentary capacity need not exist when a will is executed. A will is valid where the testator had testamentary capacity when giving sufficiently certain instructions, the will accurately embodies those instructions, the instructions continue to represent the testator’s intentions, and at execution the testator has sufficient capacity to understand that the instrument gives effect to them.

Testamentary capacity and knowledge and approval are distinct. Knowledge and approval concerns whether the will represents the testator’s true intentions. It requires the ability to understand and approve choices already made, rather than the capacity to reconsider all possible dispositions. Where the will is understood and assented to at execution, any earlier need for instructions to have been settled is overtaken.

The testator gave a solicitor instructions for a simple will while he had testamentary capacity. He executed the resulting will about 18 months later, after advanced multiple sclerosis had deprived him of full testamentary capacity. The will left the estate principally to his carer and accurately reflected his earlier instructions. The testator’s son sought to establish an earlier will in his own favour.

Lewison J, in [2009] EWHC 1945 (Ch), found that the testator lacked testamentary capacity at execution but understood a summary of the will, assented to it, and retained unchanged testamentary wishes. Applying Parker v Felgate, he pronounced for the later will. The son appealed, contending that Parker v Felgate was wrong, that knowledge and approval required testamentary capacity at execution, and that the earlier instructions had not been settled.

1. Appeal dismissed. Parker v Felgate (1883) LR 8 PD 171 was correctly decided and applied. Its principle had substantial pre-existing authority, had been endorsed by the Privy Council, and had been applied for many years. The Court of Appeal could not properly reject so established a rule.
2. The rule does not dispense with full testamentary capacity. It permits that capacity to exist when the dispositive decisions are made rather than when the instrument is executed. Where capacity has declined between instructions and execution, the court asks whether:
   1. the testator had testamentary capacity when giving the instructions;
   2. the instrument gives effect to those instructions;
   3. the instructions continued to reflect the testator’s intentions; and
   4. at execution the testator knew what he was doing and had sufficient mental capacity to perform that juristic act.
   Affirmative answers establish that the will embodies intentions formed with full capacity and intentionally carried into effect.
3. Testamentary capacity and knowledge and approval are conceptually distinct. The latter inquiry determines whether the will represents the testator’s true intention. It requires an ability to understand and approve choices already made, not an ability to reconsider all claims and possible dispositions. A testator may therefore know and approve a will despite lacking full testamentary capacity at execution.
4. Under Parker v Felgate, separate proof of knowledge and approval is unnecessary where the testator believes that the will implements earlier instructions and it does so. In any event, Lewison J was entitled to find knowledge and approval because the solicitor summarised the short and simple will, the testator understood it and assented to it.
5. The earlier intentions must be sufficiently certain to be embodied in a draft and compared with the executed will. If the testator understands and assents to the provisions at execution, any earlier need for settled instructions is overtaken. The findings that the will embodied the instructions, that the testator’s wishes remained unchanged, and that he understood and assented to the summary required the will to be pronounced valid.

• Court of Appeal (Civil Division): The court unanimously dismissed the substantive appeal and upheld the pronouncement in favour of the will. The appeal concerning the first-instance costs order remained for further argument. [2010] EWCA Civ 840
• High Court, Chancery Division: Lewison J found capacity when instructions were given but no full testamentary capacity at execution. Applying Parker v Felgate, he pronounced in favour of the later will. [2009] EWHC 1945 (Ch)