Justice Templeton, J:








“….. in the case of an aged testator or a testator who has suffered a serious illness, there is one Golden Rule which should always be observed, however, straightforward matters may appear, and however difficult or tactless it may be to suggest that precautions be taken. The making of a Will by such a testator ought to be witnessed or approved by a medical practitioner who satisfies himself of the capacity and understanding of the testator, and records and preserves his examination findings”









Kenward v Adams (1977)

Serious Illness


Multiple Sclerosis


Parkinson’s disease




Addisons disease, Affective disorders (e.g. depression), Anaemia, Cancer, Cerebral abscess, Cerebral malaria, Cerebral tumour, Creutzfeldt-Jakob, Cryptococcosis, Cushings syndrome, Dementia, Diabetes, Encephalitis, Epilepsy, HIV, Huntington’s disease, Hydrocephalus, Hypertension, Hypo/hyperparathyroidism, Hypoxia, Liver and kidney failure, Meningoencephalitis, Multiple Sclerosis (MS), Parkinson’s disease, Porphyria, Schizophrenia, Septicaemia, Simmond’s disease, SLE, Stroke/ TIA, Syphilis, Trypanosomiasis, Tuberculosis (TB).


From a scientific perspective, the term ‘aged’ relates to the statistical incidence of age-related illnesses capable of affecting capacity such as stroke, dementia or Parkinson’s . The incidence of stroke increases rapidly for those in the UK over the age of 75, from 0.15% to 1%, and it is estimated that 1% of those aged between 65 and 74 in the UK, 10% of those aged over 75 and 25% of those aged over 85 have dementia, so one can suggest that ‘aged’ means ‘over 65′, ‘over 75′ or ‘over 85′! However, approximately 15,000 people in the UK have dementia under the age of 65, and the statistics show no differentiation between those over 50 and those over 75 in relation to the incidence of Parkinson’s disease (1%) or depression (10-15%) in the UK. So the conclusion to be drawn is that aged in the context of testatory capacity should be anyone over 50 years of age


Aged should mean ‘over 50′

The UN define people as elderly in the Western World when over 60 

Looking at successfully contested Wills where no ‘serious illness’ had been diagnosed, the age of testators ranges from the early 70’s


Physical trauma

Emotional trauma



“It is essential to the exercise of such a power 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 disposal of it which, if the mind had been sound, would not have been made.” Banks v Goodfellow (1870)

Other Considerations

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