Undated will lacked testamentary intent

LAW REPORT 7 February 1996

Corbett v Newey and others; Court of Appeal (Lord Justice Butler- Sloss, Lord Justice Waite and Lord Justice Morritt); 26 January 1996.

An old lady who, having decided to change her will, signed the new version but did not date it because she thought, incorrectly, that it could not take effect until dated and she wanted to wait until after completion of certain lifetime transfers to former beneficiaries, did not have the necessary testamentary intent at the time she signed it for the will to be valid.

The Court of Appeal allowed an appeal by the plaintiff, William H.J. Corbett, and reversed the decision of Eben Hamilton QC, sitting as a deputy High Court judge ([1994] Ch 388), who ruled, in favour of the executors, John Newey and David Bennett, and various beneficiaries, that a will executed by the testatrix, Nancie Armorel Tresawna, in September 1989 but not dated until 26 December 1989, was validly executed and should be admitted to probate following her death on 6 February 1991.

Miss Tresawna, who was aged 79 in 1989, and possessed assets including her home, two farms and other land and a portfolio of investments, had made a will on 3 February 1989 leaving one of the farms to her nephew William, the plaintiff, who was unmarried and had no children, and one to her niece, Mrs Sarah Arthur, who had two sons, James and Jonathan, both minors. Apart from small legacies, her remaining assets were devised and bequeathed to William and Sarah in equal shares.

Later in the year, she decided instead to make lifetime gifts of the two farms to William and Sarah and to leave the residue to her great-nephews James and Jonathan. She instructed her solicitor to draw up deeds of gift and to draft a new will to supersede the February will. The transfers of the farms had not been completed when she signed the new will in September 1989, so she did not date it but asked her solicitor to insert the date once the transfers were complete.

She believed, mistakenly, that this would postpone the operation of the will. But the plaintiff claimed that, as a result, she lacked the necessary testamentary intent when executing the September will, which was therefore invalid, and that her estate should be distributed according to the February will.

Dismissing the claim, the judge held that Miss Tresawna had made a valid conditional will, whose operation was subject to completion of the two lifetime gifts.

Quintin Iwi (Sharpe Pritchard for Nalder & Son, Truro) for the plaintiff; Francis Barlow (Bevan Ashford, Tiverton) for the first defendant executor; Patrick Powell (Osborne Clarke, Bristol) for James and Jonathan and their mother Sarah.

Lord Justice Waite said that "animus testandi" or testamentary intent meant an intention to make "a revocable ambulatory disposition of the maker's property which is to take effect on death" : see Re Berger, decd [1990] Ch 118 at 129 per Mustill LJ.

A will, in other words, subjected the assets of the testator, from the moment of its execution, to a series of dispositions which, unless revoked, would operate at his death. Since it operated from the moment of execution, it necessarily followed that to possess the necessary animus testandi the testator must intend the dispositive, though revocable and ambulatory, regime would be called into play immediately, and not postponed to, or made dependent upon, some future event or condition.

There was thus no possibility of attributing to Miss Tresawna, at the moment of execution of the September will, an intention that it should, from that moment, take dispositive effect.

The judge, though right to hold that she had no intention to execute an unconditional will, was wrong to hold that she had the alternative intention to execute, with the immediate effect that would have been essential to its validity, a will subject to the condition he found.

The only conclusion open to the judge was that at the moment of execution Miss Tresawna, because of the misapprehension under which she was acting, lacked the animus to make any valid will, in the sense of a will intended to be immediately dispositive, at all.

Paul Magrath, Barrister

Start your day with The Independent, sign up for daily news emails
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

Recruitment Genius: Office Manager

Negotiable: Recruitment Genius: Have you been doing a brilliant job in an admi...

Surrey County Council: Senior Project Officer (Fixed Term to Feb 2019)

£26,498 - £31,556: Surrey County Council: We are looking for an outgoing, conf...

Recruitment Genius: Interim Head of HR

£50000 - £60000 per annum: Recruitment Genius: Are you an innovative, senior H...

Recruitment Genius: Human Resources and Payroll Administrator

£20000 - £22000 per annum: Recruitment Genius: Our client, a very well respect...

Day In a Page

War with Isis: Iraq's government fights to win back Tikrit from militants - but then what?

Baghdad fights to win back Tikrit from Isis – but then what?

Patrick Cockburn reports from Kirkuk on a conflict which sectarianism has made intractable
Living with Alzheimer's: What is it really like to be diagnosed with early-onset dementia?

What is it like to live with Alzheimer's?

Depicting early-onset Alzheimer's, the film 'Still Alice' had a profound effect on Joy Watson, who lives with the illness. She tells Kate Hilpern how she's coped with the diagnosis
The Internet of Things: Meet the British salesman who gave real-world items a virtual life

Setting in motion the Internet of Things

British salesman Kevin Ashton gave real-world items a virtual life
Election 2015: Latest polling reveals Tories and Labour on course to win the same number of seats - with the SNP holding the balance of power

Election 2015: A dead heat between Mr Bean and Dick Dastardly!

Lord Ashcroft reveals latest polling – and which character voters associate with each leader
Audiences queue up for 'true stories told live' as cult competition The Moth goes global

Cult competition The Moth goes global

The non-profit 'slam storytelling' competition was founded in 1997 by the novelist George Dawes Green and has seen Malcolm Gladwell, Salman Rushdie and Molly Ringwald all take their turn at the mic
Pakistani women come out fighting: A hard-hitting play focuses on female Muslim boxers

Pakistani women come out fighting

Hard-hitting new play 'No Guts, No Heart, No Glory' focuses on female Muslim boxers
Leonora Carrington transcended her stolid background to become an avant garde star

Surreal deal: Leonora Carrington

The artist transcended her stolid background to become an avant garde star
LGBT History Month: Pupils discuss topics from Sappho to same-sex marriage

Education: LGBT History Month

Pupils have been discussing topics from Sappho to same-sex marriage
11 best gel eyeliners

Go bold this season: 11 best gel eyeliners

Use an ink pot eyeliner to go bold on the eyes with this season's feline flicked winged liner
Cricket World Cup 2015: Tournament runs riot to make the event more hit than miss...

Cricket World Cup runs riot to make the event more hit than miss...

The tournament has reached its halfway mark and scores of 300 and amazing catches abound. One thing never changes, though – everyone loves beating England
Katarina Johnson-Thompson: Heptathlete ready to jump at first major title

Katarina Johnson-Thompson: Ready to jump at first major title

After her 2014 was ruined by injury, 21-year-old Briton is leading pentathlete going into this week’s European Indoors. Now she intends to turn form into gold
Syrian conflict is the world's first 'climate change war', say scientists, but it won't be the last one

Climate change key in Syrian conflict

And it will trigger more war in future
How I outwitted the Gestapo

How I outwitted the Gestapo

My life as a Jew in wartime Berlin
The nation's favourite animal revealed

The nation's favourite animal revealed

Women like cuddly creatures whilst men like creepy-crawlies
Is this the way to get young people to vote?

Getting young people to vote

From #VOTESELFISH to Bite the Ballot