A checklist for capacity to make a valid will

Every now and then, a client appears in chambers wanting with instructions that a will be drafted for him. Quite a number of induviduals have considered the need to make a will and wondered whether they had the capacity to make one. For the benefit of lay persons, it is important to state at the outset that being not having property at present does not mean that you cannot make a will bequithing the same. This is especially relevant where one expects certain property to transfer to his/her name in future.

The following is a brief discussion of the issues that a counsel or a person making a will should put in consideration to avoid invalidation of an otherwise valid will on basis of lack of capacity of the maker. In essence, they are also the issues that a lawyer must satisfy himself of before getting a client to execute a will besides formality issues.

1.Capacity
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The Law of Succession Act, Cap 160, Laws of Kenya, (hereinafter the “Act”) provides that any person who is of sound mind and not a minor may dispose of all or any of his free property by will and may thereby make any disposition by reference to any secular or religious law that he chooses (Section 5(1) of the Act).

2.Age
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An infant is incapable of making a valid will. Any will made during infancy is invalid even when the minor reaches the age of majority. The minor upon reaching the age of majority can validate the infancy will by:

(i) re-executing the will or;
(ii) preparing a codicil confirming the will.

3.Testamentary Capacity
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As per Section 5(3) of the Act, any person making or purporting to make a will shall be deemed to be of sound mind unless he is at the time of executing the will, in such a state of mind, whether arising from mental or physical illness, drunkenness, or from any other cause, as not to know what he is doing.

In Vaghella –vs– Vaghella [1999] 2EA 351, the court stated that the validity of a will derives from the testamentary capacity of the testator and from the circumstances attending its making.

A will made by a person during period of mental unsoundness of mind is invalid. Mental capacity is not directly linked to mental disorder or madness but it refers to the testator’s capacity to understand the nature of what they are doing.

The test of mental capacity to make a will as set by Cockburn C.J. in Banks –vs– Goodfellow (1870) LR 5 QB 549 requires that testator must have:

(i) Sound mind enabling him to understand the nature of the act of making a will and its effects. He must understand what he is doing, not of low mentality or is under the influence of drink or drugs. The testator’s mind must not be prey to insane delusions perverting his moral sense thus interfering with his reason and judgment in the way he disposes his property. This point was also address in Re Nightingale [ 1974] 119 Sol Jo 189

(ii) Sound memory enabling him to have a recollection of the property of which he is disposing. It is not the degree of memory possessed by the testator but he ought to be able to recollect the property he is about to bequeath, the manner of distributing it and the objects of his bounty.

(iii) A sound understanding. He should be able to remember the persons he is morally to provide for, having regard to their relationship to him.

4.Insane Delusions
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A person suffers from insane delusions if he holds belief of a particular matter which no rational person can hold and the belief cannot be eradicated from his mind by reasoning with him.

Insane delusions were defined in Dew –vs– Clark (1826) 3 add 79 where the testator had made a prima facie valid will but in which he excluded his daughter because he had an insane aversion to her. The will was declared invalid.

Insane delusions will only affect the person’s capacity to make a Will if it affects the way he disposes of his property. The effect of this is to invalidate the will. If it affects the whole will, then the entire will is invalidated and if it affects part only the affected part is invalidated.

In the Banks –vs– Goodfellow (Supra), the testator believed that evil spirits and a person who was already dead were pursuing him. The court found that although the testator suffered from insane delusion the same did not affect his testamentary capacity as the delusions did not affect the way in which he disposed off his property by will.

CONCLUSION
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For a will to take effect as a valid testamentary disposition, it must be proved that: the testator had capacity at the time of executing the will, the formal requirements were complied with and whether the document alleged to be a will was revoked by the testator before his death.
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This article is an adaptation of a section of group work we did with a couple of my friends from whom I was not able to obtain permission to acknowledge by name.

A dozen quotes for the lawyer

Here the dozen legal quotes which I live on:

1. [When advised not to become a lawyer because the profession was overcrowded:] "There is always room at the top."

- Daniel Webster, quoted in Edward Latham, Famous Sayings and Their Authors 65 (1904)
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2."Ignorance of the law is no excuse in any country. If it were, the laws would lose their effect, because it can always be pretended."

- Thomas Jefferson, Letter to Andre Limozin, 22 Dec. 1787, in Papers of Thomas Jefferson 12:451 (Julian P. Boyd ed. 1955)

It is ignorance of the law rather than knowledge of it that leads to litigation.

(Cicero (106-43 BC) De Legibus, bk. I, ch. VI)
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3. "Never fear the want of business. A man who qualifies himself well for his calling never fails of employment in it."

- Thomas Jefferson, Letter to Peter Carr, 22 June 1792, in Writings of Thomas Jefferson 6:92 (Paul L. Ford ed. 1895)
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4. "Our profession is good, if practiced in the spirit of it; it is damnable fraud and iniquity when its true spirit is supplied by a spirit of mischief-making and money catching. "

- Daniel Webster, Letter to James Hervey Bingham, 19 Jan. 1806, in Papers of Daniel Webster: Legal Papers 1.69 (Alfred S. Konefsky & Andrew J. King eds. 1982)
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5. "Your law may be perfect, your knowledge of human affairs may be such as to enable you to apply it with wisdom and skill, and yet without individual acquaintance with men, their haunts and habits, the pursuit of the profession becomes difficult, slow, and expensive. A lawyer who does not know men is handicapped."

- Louis D. Brandeis, Letter to William H. Dunbar, 2 Feb. 1893, in Letters of Louis D. Brandeis 1:108 (Melvin I. Urofsky & David W. Levy eds. 1971)
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6. "Courage is the most important attribute of a lawyer. It is more important than competence or vision. It can never be an elective in any law school. It can never be de-limited, dated or outworn, and it should pervade the heart, the halls of justice and the chambers of the mind."

- Robert F. Kennedy, Speech at University of San Francisco Law School, San Francisco, 29 Sept. 1962, quoted in Sue G. Hall, The Quotable Robert F. Kennedy 111 (1967)
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7. "Anyone who believes a better day dawns when lawyers are eliminated bears the burden of explaining who will take their place. Who will protect the poor, the injured, the victims of negligence, the victims of racial violence?"

- John J. Curtin, Jr., Remarks to American Bar Association, Atlanta, 13 Aug. 1991, quoted in Time, 26 Aug. 1991, at 54
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8. "Lawyers, Preachers, and Tomtits Eggs, there are more of them hatch'd than come to perfection."

- Benjamin Franklin, Poor Richard's Almanack, 1734, in Papers of Benjamin Franklin 1:354 (Leonard W. Labaree ed. 1959)
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9. The leading rule for the lawyer, as for the man of every other calling, is diligence. Leave nothing for tomorrow which can be done today. Never let your correspondence fall behind. Whatever piece of business you have in hand, before stopping, do all the labour pertaining to it which
can then be done.

-(Referred to in the Law Society Journal. "These are not the words of a
modern time management consultant, but of Abraham Lincoln in 1850.")
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10. Discourage litigation, Persuade your neighbours to compromise whenever you can ...
As a peacemaker the lawyer has a superior opportunity of being a good man ...
There will be business enough.

(Abraham Lincoln, Notes from Law Lectures, 1st July, 1850 quoted in
The Court is Open by Bartley)
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11.I started in life with the belief that our profession in its highest walks afforded the most noble employment in which any man could engage and I am of the same opinion still ... I believed a man could be of greater service to his country and his race in the foremost ranks of the Bar than anywhere else and I think so still. To be a priest and possibly a high priest in the Temple of Justice to serve at her altar and aid in her administration, to maintain and defend those inalienable rights of life, liberty and property upon which the safety of society depends, to succour the oppressed and to defend the innocent to maintain constitutional rights against all violations whether by the executive, by the legislature, by the relentless power of the press or
worse of all by the ruthless rapacity of an unbridled majority. To rescue the scapegoat and restore him to his proper place in the world - all this seemed to me to furnish a field worthy of any man's ambition.

(Joseph Choate the 21st President of the Chicago Bar Association)
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12.Please remember that law and sense are not always the same.

(Jawaharlal Nehru (1889-1964) in N.B. Sen, Wit and Wisdom
of India, 1961)

(Compliled from diverse sources which have been acknowledged)

For safety, Let Devil have Law's Benefit

—
Margaret: “Father, the man is bad.”
More: “There’s no law against that.”
Roper: “There is a law against it. God’s law.”
More: “Then God can arrest him.”
Roper: “Sophistication upon sophistication!”
More: “No. Sheer simplicity. The law, Roper, the law. I know what’s legal, but I don't always know what’s right. And I'm sticking with what’s legal.
Roper: “Then you set man’s law against God’s?”
More: “No. Far below. But let me draw your attention to a fact. I am not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of the law, there I am a forester. I doubt if there’s a man alive who could follow me there, thank God.”
Alice: “While you talk, he is gone.”
More: “And go he should, if he was the Devil himself, until he broke the law.”
Roper: “So now you'd give the Devil the benefit of law!”
More: “Yes. What would you do? Cut a great road through the law to get to the Devil?”
Roper: “I'd cut down every law in England to do that!”
More: “Oh? And when the last law was down, and the Devil turned round on you -- where would you hide, Roper, the laws all being flat. This country’s planted thick with laws from coast to coast -- man’s laws, not God’s -- and if you cut them down -- and you're just the man to do it -- do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of the law, for my own safety’s sake.”

(Extracted from Robert Bolt(1960), Man for All Seasons[1st ed., Vintage Books)

The benefit of Going to Law

Two beggars travelling along,
One blind, the other lame,
Pick'd up an oyster on the way
To which they both lay claim:
The matter rose so high, that they
Resolv'd to go to law,
As often richer fools have done,
Who quarrel for a straw.
A lawyer took it straight in hand,
Who knew his business was,
To mind nor one nor t'other side,
But to make the best o' the cause;
As always in the law's the case
So he his judgment gave,
And lawyer-like he thus resolv'd
What each of them should have.
Blind plaintiff, lame defendant, share
The friendly law's impartial care,
A shell for him, a shell for thee,
The middle is the lawyer's fee.
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(Extracted from: Benjamin Franklin (1706-1790) Poor Richard's Almanac,
1733.

Law Quotes on Business

Organized business is a thing of law; and the law is always
hard and unrelenting toward the weak.
(Henry Ward Beecher (1813-1887) Proverbs from Plymouth
Pulpit)
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It is when merchants dispute about their own rules that they
invoke the law.
(Judge Brett (1815-1899) Robinson v. Mollett, 1875)
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The great object of the law is to encourage commerce.
(Judge Chambre (1739-1823) Beale v. Thompson, 1803)
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The most enlightened judicial policy is to let people manage their
own business in their own way.
(Oliver Wendell Holmes (1841-1935) Dr Miles Medical Co. v.
Park & Sons Co., 1911)
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Laws for the regulation of trade should be most carefully
scanned. That which hampers, limits, cripples and retards
must be done away with.
(Elbert Hubbard (1856-19150) Notebook, 1927, p. 16)
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Convenience is the basis of mercantile law.
(Lord Mansfield (1705-1793) Medcalf v. hall, 1782)
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(Extracted from Collins Dictionary of Business Quotations by Simon James
& Robert Parker, Harper Collins Publishers, Glasgow, 1990)