//
you're reading...
Capacity

Common and solemn

Probate, or proving, of a will can be made in common or solemn form.  As noted at [4] in Young v Young “Probate in solemn form is generally irrevocable; probate in common form is revocable.”

By way of general observation probate in common form is what is most commonly sought.  Probate in solemn form is appropriate where there are “contentious aspects of the will’s validity.”

Young v Young is interesting in that it invites the court to determine whether there will be probate in solemn form of a later will or probate in common form of the earlier will (which will not have been revoked if probate is not granted with respect to the later will.)

The case provides useful guidance regarding considerations as to validity.  As noted at [6] the court does not need to know why a will was drafted, only “whether there is any foundation to doubt its validity.”

The will-maker in question was suffering from advanced dementia, as confirmed by her general practitioner.  However, the witnesses to the will-maker’s signature gave evidence of her being engaged and responsive before signing the later will.  This was contrasted against other contemporary evidence as to the will-maker’s loss of capacity.

Being satisfied on the balance of probabilities that the will-maker lacked testamentary capacity, the court found that the later will was not valid and accordingly that the earlier will was not revoked.

The case is useful for demonstrating the ability to address probate in solemn and common form in the same proceedings; and a reminder that a will-maker may be able to respond to historical prompts such as photographs, but nevertheless at the same time may not possess the requisite testamentary capacity to enter into a new will.

References:

  • Young v Young [2018] NZHC 3397
  • Wills Act 2007
  • High Court Rule 27.4

Discussion

One thought on “Common and solemn

  1. You may be interested to contrast this decision with Public Trust v Dollimore & Sowman [2018] NZHC 3316, another case involving the validity of a will where capacity was in issue. In this case the will maker was found to have capacity, notwithstanding that she was suffering from dementia at the time she gave her will instructions.

    Posted by Amanda Crehan | January 14, 2019, 10:18 am

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

Categories

%d bloggers like this: