Barry v Butlin
The person propounding a will must prove that the testator knew and approved its contents, and where the will was prepared by a person who benefits under it, the court must be vigilant and the suspicion must be removed.
Facts
Mr Butlin made a will which left a substantial gift to his attorney, Mr Percy, who had prepared the will, and to his butler and another friend, leaving out his only son, with whom he had been on bad terms. The son challenged the will, arguing that the fact that the attorney who drew the will took a benefit under it should raise a presumption against its validity.
Legal principle
The Privy Council upheld the will. Parke B said that the onus probandi lies in every case upon the party propounding a will, who must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator. If a party writes or prepares a will under which he takes a benefit, that is a circumstance that ought generally to excite the suspicion of the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument, which ought not to be pronounced for unless the suspicion is removed. There was no rule of law that such a will was invalid, and here the evidence showed that the testator knew and approved its contents.
Related cases on testamentary capacity, knowledge and approval
- Banks v Goodfellow (1870) LR 5 QB 549
- Gill v Woodall [2010] EWCA Civ 1430, [2011] Ch 380
- In the Estate of Fuld (No 3) [1968] P 675
- Key v Key [2010] EWHC 408 (Ch), [2010] 1 WLR 2020
- Parker v Felgate (1883) 8 PD 171
- Simon v Byford [2014] EWCA Civ 280
- Walker v Badmin [2014] EWHC 71 (Ch)
- Wintle v Nye [1959] 1 WLR 284
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