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