The Civil Division of the Court of Appeal handed down judgment in the case of Perrins v Holland and Others [2010] EWCA Civ 840 on the 21st July 2010. The case concerned dispute over a will on grounds of testamentary capacity.

The appellant son of the testator challenged a will drafted in April 2001 and executed on 26th September 2001. The entirety of the estate was granted to the testator’s second wife. The appellant wished to have recognised an earlier will made in his favour. The appellant submitted that the testator lacked testamentary capacity at the point of execution of the will and therefore could not have known and approved the contents. Central to the case were principles propounded in the decision of Parker v Felgate (1883) LR 8 PD 171.

In Parker v Felgate, the presiding judge determined the validity of a will where the testator had ceased to have capacity at the point of execution. Finding that validity could be established either where prior instruction had been received or in the alternative where subsequent knowledge and approval of a will’s contents occurred, the court declared the will to be valid.

In the High Court, the testator was found to have capacity on the earlier of the two dates, though not at the point of execution. Applying Parker v Felgate, the court considered that the contents of the will represented the testator’s wishes as expressed at the drafting stage. Consequently at the point of execution, his wishes remaining unchanged, the testator could be said to have known and approved of the contents of the will.

Before the Court of Appeal, three issues were put forward on behalf of the appellant. First, that the case of Parker v Felgate was wrong in principle, without authority and the law instead requires testamentary capacity at the point of execution; second that if testamentary capacity is required at the point the will is executed, then the testator cannot have known and approved the contents. Third, referring to Parker v Felgate, the appellant submitted that the High Court judge should have considered whether the testator had a “settled” state of mind.

Analysing whether Parker v Felgate was still authoritative, the court referred to numerous cases. Finding strong authority for validity of that case’s principles in Pereira v Pereira [1901] AC 354 the court also noted that in more recent cases, including Re Flynn [1982] 1 WLR 310, the principles had been applied with comment. Electing to follow Parker v Felgate, the court expressed the law to be that a will was valid if when executed it expressed the wishes of a testator at the time he had capacity, without subsequent amendment or revocation.

Addressing the second proposition, having determined that testamentary capacity was not required at the point of execution, the court framed the question to be whether the requirement of knowledge and approval should indirectly import it. Referring to Billinghurst v Vickers (1810) 1 Phill Ecc 187, the court outlined that the purpose of a requirement of knowledge and approval was to form a rebuttal in case of suspicion. Discussing Barry v Butlin (1838) II Moore 480, the court found the test of knowledge and approval, in the sense of acceptance of the contents, does not require full testamentary capacity, thus the conclusion of the High Court on this point could not be said to be illogical.

Considering the third point, the court found that an express consideration of whether a “settled” state of mind had been established had not occurred. Following Parker v Felgate however, the finding that the testator’s wishes had not altered between drafting and executing the will rendered unnecessary a factual assessment of the state of mind issue and no grounds for challenging the conclusion that the will was valid had been raised.

Dismissing the appeal, the court pronounced in favour of the 2001 will.