Thompson & Ors v Thompson & Ors  NIFam 3 (16 February 2003)
The lawyers' evidence
The Evidence of Third Parties
The evidence of the Ramages
The evidence of Harold Thompson and his sons
The Evidence of the Wattons
The Evidence of Joseph McLaughlin
The legal challenge to the will
The Guiding Legal Principles
"On the first head the difficulty to be grappled with arises from the circumstances that the question is almost always one of degree. There is no difficulty with the case of a raving mad man or drivelling idiot in saying that he is a person incapable of disposing of property; but between such an extreme case and that of a man of perfectly sound and vigorous understanding there is every shade of intellect, every degree of mental capacity. There is no mistaking midnight for noon but at what precise moment twilight becomes darkness is hard to determine."
The classic test as to the validity of a will where doubt has been cast on the testator's mental capacity is set out in the judgment of Cockburn CJ in Banks v Goodfellow (1870) LR 5QB at 256.
"It is essential that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposition of it which, if the mind had been sound would not have been made."
Thus there are three things in particular that the testator must comprehend, namely (a) the nature of the act and its effects, (b) the extent of the property of which he is disposing and (c) the claims to which he ought to give effect.
"The contention is that if a will does not have the effect intended the testator cannot be said to have known and approved its content. I think that that contention is fallacious and based on a confusion between the terms and the effect of the document. A testator cannot give a conditional approval to the words which had been put in his intended will by himself or by another for him. He cannot say "I approve those words if they shall be held to bear the meaning and have the effect which I desire, but if not I do not approve them". He must find, or employ others, to find apt words to express his meaning; and if knowing the words intended to be used he approves and executes the will then he knows and approves the contents of his will and all the contents even though such approval may be due to a mistaken belief of his own or to honestly mistaken advice from others as to their meaning and legal effect: Morrell v Morrell 7PD 68".
"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 the court, and calls upon it to be vigilant and jealous in examining the evidence in support of the instrument in favour of which it ought not to pronounce unless the suspicion is removed".
Viscount Simonds in Wintle v Nye  1WLR 284 at 291 said:
"It is not the law that in no circumstances can a solicitor or other person who has prepared the will for a testator take a benefit under it. But that fact creates a suspicion that must be removed by the person propounding the will. In all cases the court must be vigilant and jealous. The degree of suspicion will vary with the circumstances of the case. It may be slight and easily dispelled. It may, on the other hand, be so grave that it can hardly be removed".
"Some of the older cases say that the onus on a person who takes a benefit under a will which he has been instrumental in preparing or obtaining is 'the onus of showing the righteousness of the transaction'. (See for example Fulton v Andrew (LR 7HL 448, 471-472 per Lord Hatherly). This is not, to my mind, a separate onus from that of dispelling the suspicion that the testator may not have known or may not have approved the contents of the will; it is merely a more grandiloquent way of expressing exactly the same concept. The vigilance and jealousy of the court is directed to being satisfied that the testator did know and approve the contents of his will; no less but also no more".
"Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping distress of mind or social discomfort, these, if carried to a degree in which the freeplay of the testator's judgment, discretion or wishes is overborne will constitute undue influence, though no force is either used or threatened. In a word a testator may be led but not driven and his will must be the off-spring of his own volition and not the record of someone else's".
Determination of the Issues