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Carolyn Hansen (Executrix of the estate of Peter Francis Barker-Benfield, Deceased) v Pauline Barker-Benfield

The last will of an elderly testator was held to be invalid for lack of testamentary capacity. Although the presence of delirium in a testator was not, in itself, indicative of capacity, a steady deterioration of health made it even more important to look for positive indications of capacity if the burden of proving testamentary capacity was to be met.

2 June 2006

The claimant (H) sought an order setting aside dispositions of property made by the testator (T) shortly before his death. She also sought a declaration that the defendant widow (B) held the beneficial interest in the properties on a constructive trust for herself and H in equal shares. B counterclaimed, seeking a declaration that T’s will was invalid for lack of capacity or lack of knowledge and approval or both and that issue of probate should be granted to herself. H was the daughter and sole surviving child of T by his first marriage. B was the second wife and widow of T. Some 10 days before T’s death, H had paid him a surprise visit. She had not seen him for nine years although they had spoken on the telephone. At the time of her visit T was very ill in hospital, but he executed a will prepared by solicitors making H his executor and sole beneficiary. During probate it was discovered that two months prior to his death T had transferred his interest in several properties to ...

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