[Vol. 18
NOTES
Deluded Testators and Re Bohrmann Estate
Re Bohrmann Estate I is probably the only English or Canadian
decision that invalidates a legacy affected by a specific delusion
about the legatee but grants probate of the rest of the will.2
Dr. Cecil Wright has recorded his conviction that the course
taken was wrongY He would have held the whole will bad. Macdonell
& Sheard’s Probate Practice 4 has adopted his view and cites Fulton
v. Andrew 5 as confirming it. This article will however contend that
Re Bohrmann was right on the point questioned, though also that
the decision was wrong on another point not raised by Dr. Wright
or the text-writers.
Re Bohrmann is inadequately reported, the only statement of
facts being that made in Langton, J.’s reasons, which are vague
on material points. The judge seems to indicate that Clause 6 of
Bohrmann’s will left the residue to “charities in England”; 6 the
fourth codicil stated that Clause 6 of the will should be construed
as if the word “England” was deleted and replaced by “United
States of America”. 7 It seems a necessary inference that no charities
were named, but the executors were empowered to select them.
An action to prove in solemn form was contested by the next of
kin, who claimed there was lack of testamentary capacity, so that
an intestacy resulted.
At the trial there was much evidence of the testator’s eccen-
tricities. The court held that he had general testamentary capacity,
1 [1938] 1 All E.R. 271, 158 L.T. 180, 82 Sol. Jo. 176.
2Two other cases of partial probate may be noticed. In Billinghurst v.
Vickers, (1810), Phillimore 187, the first part of a will written by the testator
was probated, but a later part added by a legatee was rejected because the
court was not satisfied the testator knew and approved of the contents. In
Wood v. Wood, (1811), Phillimore 357, the court in probating a will struck
out an addition to the will made after death.
3 Commentary, (1938), 16 Can. Bar Rev. 405, at p. 409.
4 (Carswell, 1953), at p. 23.
5 (1875), L.R. 7 H.L. 448.
0 [1938] 1 All E.R. 271, at p. 281.
7Ibid.
No. 1]
NOTES
yet that he had an insane delusion against the London County
Council which caused the substitution made in the fourth codicil.
In the result, the court ruled that the change was void, but
that the rest of the codicil and the will should stand, with Clause
6 in its original form. Dr. Wright disagreed because he claimed
that the deletion was put on the ground of “testamentary in-
capacity”,” which should have invalidated the whole will.
Since Langton, J. had expressly negatived general incapacity,
Dr. Wright’s reasoning seems to revert to the view expressed in
two early cases, of which Cockburn, C.J. said in Banks v. Good-
fellow: 9
It is true that in the case of Waring v. Waring o the Judicial Committee
of the Privy Council, and in the recent case of Smith v Tebbitt” Lord
Penzance in the Court of Probate, have laid down a doctrine according
to which any degree of mental unsoundness, however slight, and however
unconnected with the testamentary disposition in question, have been held
fatal to the testamentary capacity of the testator.
Cockburn, C.J. added that those pronouncements were obiter; they
were declared to be bad law, not only in Banks v. Goodfellow 12
and Smee v. Smee,13 but also in such Canadian cases as Mclntee
v. McIntee,’4 Skinner v. Farquharson’5 and Parg v. Cusson.16 So
far as Bohrmann’s will was invalidated, the ground was not in-
capacity, but specific delusion, which is quite compatible with
general capacity.
It may be questioned whether specific delusion involves in-
capacity, even ad hoc; but assuming ad argumentum that it does,
there is no reason for making a particular bad disposition invalidate
any other in the will not the product of delusion. Dr. Wright’s
conclusion that even dispositions not caused by delusion must also
fall does not follow at all. Of course, in many cases proof of delusion
results in the court being prepared to hold that a person who was
the subject of the testator’s delusion must have suffered from it,17
8 (1938), 16 Can. Bar Rev. 405, at p. 409.
9 (1870), L.R. 5 Q.B. 549, at p. 556.
10 (1848), 6 Moo. P. C. 341.
11 (1867), L.R. 1 P. & M. 398.
12 (1870), L.R. 5 Q.B. 549, at p. 559.
13 (1879), 5 P.D. 84, at pp. 90, 91.
14 (1910), 22 O.L.R. 241.
15 (1902), 32 S.C.R. 58, at p. 85.
16 [1921] 2 W.W.R. 11 (Man. CA.).
17 It seems unnecessary to discuss the conflict between two lines of authority,
one holding that delusion concerning the subject of a disposition only invali-
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though it cannot be said how much he suffered, as where he had
strong claims upon the testator’s bounty, but the will left him
nothing or an inadequate benefit. Then, since the court cannot
improve matters by deletion from the will, it perforce sets aside
the whole,”‘ so that the complainant profits under intestacy or a
revoked will. But when deletion of that part of a will affected by
delusion can give adequate remedy, then the court deletes, and it
cannot justify setting aside the will.
Dr. Wright seems to have been misled by fixing his attention
on wills of the first type, where he should have looked to the second.
Bohrmann’s will seems clearly to fall into the second category.
Deletion gave complete relief and the whole will could not have
been rationally annuled. 19
As has been said, Macdonell & Sheard invoke Fulton v. Andrew 20
as supporting Dr. Wright’s view, which they adopt. But that decision
does not really support them or Dr. Wright. There the will pro-
pounded was attacked on two grounds. First, lack of testamentary
capacity due to drunkenness and brain disease; and, secondly, that
the testator did not know and approve of the residuary clause.
A special verdict found that the testator had general capacity, but
that he did not know and approve of the residuary clause.21 The
House of Lords, reversing the probate court, held that probate
should issue, but excluding the residuary clause, so that there
was resulting intestacy as to the residue.
Macdonell & Sheard argue that Fulton v. Andrew held it absurd
… that when the dispositions in question are all contained in the same
document, incapacity could invalidate some of them, but leave the others
unaffected.
dates when it is proved that the delusion actually produces that disposition,
the other holding that the delusion invalidates the disposition when it appears
to have been calculated to affect the disposition and its influence is not dis-
proved.
18There are many instances of which one may find examples in Battan
Singh v. Amirchand, [1948] A.C. 161; Smee v. Smee, (1879), 5 P.D. 84; Ouderkirk
v. Ouderkirk, [1936] S.C.R. 58; Timbury v. Coffee, (1941), 66 C.L.R. 277.
19 One may well wonder whether Dr. Wright’s general attitude toward
will-making was not unorthodox. Thus he asks [(1938), 16 Can. Bar Rev. 405,
at p. 407]:
the courts lend their assistance to supporting dispositions
Not many of the legal profession would concur in the attitude that reveals.
Why should
of persons devoid of social instincts?
20 (1875), L.R. 7 H.L. 448.
2.1 Ibid., at p. 454.
No. 13
NOTES
They comment:
That view it is submitted is the correct one, and Re Bohrmann must be
regarded as wrongly decided. 2
Fulton v. Andrew actually held that part of the will (the residuary
clause) was invalidated, yet the other parts were unaffected. More-
over, the effect of the decision is not what is suggested. It did not
turn on incapacity, which was expressly negatived, but on the
testator’s not knowing or approving of the clause invalidated.
Re Bohrmann is perfectly consistent with that decision.
(i)
Though the objections to Re Bohrmann considered above seem
to have been unfounded, it is submitted that the decision was
otherwise wrong in that:
(1) it gave effect to objections of delusion that were never in
issue in the action;
(2) the objections given effect to were objections that no one
had a locus standi to raise.
As has been said, Bohrmann’s will was contested, not by English
charities, whose identities were still unascertained, but only by
a next of kin. He complained, not of Clause 6, nor of the change
in Clause 6 by codicil, but of the whole will. He set up not a
delusion that Langton, J., found, but that the testator had no
testamentary capacity. He claimed there was an intestacy.
Langton, J., found for the testator’s capacity, which was the
only issue raised, but held part of the fourth codicil to be bad
for delusion, which had not been pleaded. There was actually no
one before the court who had any interest in pleading the delusion.
Seemingly no English charities could get before the court, since
none had been given a status by the executors having selected them.
Probably the situation could only have been met regularly by the
Attorney-General’s intervening on behalf of unascertained charities
and raising objections to the will. The actual situation however was
that the only parties before the court were the executors and the
next of kin, and no issue had been raised except general testamen-
tary incapacity.
22 Macdonell & Sheard, op. cit., n. 4, at p. 23.
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Practice in probate suits requires opponents of a will to specify
particular instances of delusion.23 Earlier, though instances did
not need to be specified,24 delusion still had to be pleaded; and
there seems to be no ground on which a probate court could
justify invalidating a will for delusions not pleaded, much less
for delusion that no party sets up even informally, but which is
merely revealed incidentally in the evidence.
(ii)
The second objection to Re Bohrmann is that not only was
delusion never in issue, but that there was no one who could have
put it in issue. No one had any locus standi. And that was not
only because no charities had been identified. There is little direct
authority on who can set up delusion of a testator, other than
general lunacy. But it will be submitted that a locus standi to put
delusion in issue requires that:
(1) the delusion must be one about the complainant; and
(2) the complainant must be someone to whom the testator owed
a testamentary duty.
(iii)
The books say little on what subject a delusion must relate
to before it can be made ground for attacking a will. But principle
seems to require that the delusion must have been one about the
complainant, as an example will show.
Suppose X and Y are the next of kin of Z. Z has an insane
delusion about Y but none about X. Z’s will leaves nothing to
either X or Y. Y refuses to attack the will, but X, wishing to
establish an intestacy, sues to invalidate the will because of the
delusion, Y declining to join as a party. Y could have set aside
23 See Re Shrewsbury, McLeod v. Shrewsbury, [1922] P. 112, a decision on
the former English 0.19 R. 25A, which has been adopted in some provinces.
The English rule is now 0.18 R.12 (I) (b), which requires particulars of
“disorder or disability of mind”.
24 The decisions in Salisbury v. Nugent, (1883), 9 P.D. 23 and Hankinson v.
Birmingham, (1883), 9 P.D. 62, upon an earlier rule, though they held that
particular acts, relied on to prove pleas of undue influence or incapacity
need not be specified, never questioned that those pleas themselves must
be expressly raised. 0.19 R.25A, which dealt with delusion, expressly called
for giving specific instances.
No. 1]
NOTES
the whole will, and then X would have benefited as to half the
estate. But it seems unarguable that X can capitalize on a wrong
to Y, which Y will not complain of. That wrong is none of X’s
business, and his action should fail.
Re Bohrmann seems somewhat analogous. The delusion was not
set up by any party. Those who were given relief against it were
unascertained English charities. Langton, J., treated the delusion
as one about them, though his reasoning was vague; actually, the
delusion was directed against the London County Council. The
only ground that existed for identifying Council and charities was
that the Council were expropriating Bohrmann’s land to build a
hospital. Thus, particularly in view of the charities’ being un-
identified, their connection with the Council was about as tenuous
as possible, and Mr. Justice Langton’s ruling against the fourth
codicil for the benefit of the charities seems questionable on several
counts.
(iv)
Locus standi to attack a will for delusion, while requiring the
delusion to have been one about the complainant, appears
to
invoke other more complicated factors too. One problem is this:
are all persons on the same footing for attacking a will who have
deprived of benefits by the testator’s delusions about them? If not,
what distinctions should be drawn? Inherent in that problem is
the question: what in law constitutes a deprivation? The answer
seems inevitable that something in the nature of a “right” must
be taken away.
There are authoritative rulings that the persons who would
take upon an intestacy can only be deprived by a valid will.25
They can contest any will that they can show to be legally ob-
jectionable. But can any person not a next of kin complain about
being deprived by a deluded testator, even one deluded about him?
One not a next of kin can only hope to benefit through a will.
If there is only one will, he cannot benefit by having it set aside.
And since he cannot benefit, attack by him on the will can only
be vexatious, and the Court should hold that he has no locus standi.
Where a complainant about delusion had a valid first will giving
him a legacy, but a second will or a codicil tainted by delusion
2GHouston v. Burns, [1918] A.C. 337, at p. 342; A.-G. v. National Provincial
Bank, [1924] A.C. 262, at p. 268.
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about him revoked the legacy, then his claim of unlawful deprivation
becomes more plausible, though he may be a stranger in blood.
But if unlawful deprivation involves the taking away of some
right, does this stranger in blood lose any “right”? Is he in the
same position as a next of kin who loses a legacy in the same way?
It is submitted that there exists a basic difference: When some-
one like a son is given benefits under a wholly-sane testator’s will,
but those benefits are later revoked through insane delusion about
the son, does not the son’s right to attack the revocation arise
because he is a son, rather than because of the earlier legacy?
The mere will of a living testator gives a legatee no vested rights.
The right to complain of dispositions caused by delusion has
been several times judicially said to be measured by the extent
of the testamentary duty.” That is, the disposition is vulnerable
if the testator thereby infringed a duty to benefit the complainant.
But it is another matter where a legacy revoked was a mere matter
of generosity in the first place. There the testator should be as
free to take away as to give, and the legatee should have no status
to complain, even of specific delusion.
That principle makes sense, but how far will it extend? There
are statutes that indirectly restrict the disinheriting of spouses
and children,27 but they do not directly invalidate wills. They permit
Courts as a matter of discretion to vary wills within narrow limits.
But apart from such a statute, testators are not bound to leave
anything to anybody; 28 the testamentary duty that exists is moral
only.
Ordinarily the Court does not try to measure moral duties; 20
but where it acts upon them, it must perforce give some precision
2 6Banks v. Goodfellow, (1870), L.R. 5 Q.B. 549, at p. 565: “claims to which
he ought to give effect”; and p. 569: “claims upon his regard and bounty”;
Battan Singh v. Amirchand, [1948] A.C. 161, at p. 170; Harwood v. Baker,
(1840), 3 Moo. P.C. 282. Re Bohrmann seems to be inconsistent with the prin-
ciple of those decisions.
Knight, (1873), L.R. 3 P. & D. 64, at p. 66.
27These are variations on the original New Zealand Testator’s Family Main-
tenance Act, 1911; e.g., the British Columbia Act of that name, R.S.B.C. 1960,
c. 378; the Ontario Dependants Relief Act, R.S.O. 1960, c. 104; the English
Inheritance (Family Provision) Act, 1938, I & II Geo. 6, c. 45.
2 8Banks v. Goodfellow, (1870), L.R. 5 Q.B. 549, at pp. 563, 564; Boughton v.
29 A sane testator may not only disinherit all relatives, but do so from
the unworthiest motives: Boughton v. Knight, (1873), L.R. 3 P. & D. 64, at
p. 66; Hart v. Tulk, (1852), 2 D.M. & G. 300, at p. 313; in Beal v. Henri, [1950]
O.R. 780 (CA.), the Court upheld a will which left all the estate to a mistress
and an ex-mistress, because the wife and children were ignored owing to
estrangement, not to delusion.
No. 1]
NOTES
to the concept. In practice the Courts have not gone beyond recog-
nizing a testamentary duty to “near relatives”, 30 and probably there
is no precedent that recognizes a duty to relatives more remote than
nephews and nieces 3 There can undoubtedly be cases where a stran-
ger in blood would have stronger moral claims to a testator’s bounty
than any relative. The stranger may have reared the testator from
childhood when all relatives neglected him. The testator may have
been a physical wreck who owed everything to the stranger and
nothing to relatives. Some dicta in Banks v. Goodfellow,32 Smee v.
Smee 33 and Burdett v. Thompson 34 hint obliquely that a stranger
in blood might have a moral claim that could invalidate a will that
ignored him owing to delusion. But all those hints are obiter, and
there seems to be no real authority for the proposition that others
than relatives (or spouses) can have a legal complaint that a tes-
tator’s delusion deprived them of benefits.
(v)
There remains the question how far the Courts will inquire
whether a testator’s leaving little or nothing to a near relative is
due to delusion. There is a strong decision that a testator has no
testamentary duty toward a son from whom he has been long
estranged. They are in effect strangers, and he need not leave the
son anything.35 Absence of duty implies that it should make no
difference if the testator had an insane delusion about such a son. 6
But this seems to be a field in which there is a dearth of
authority on how far a testator’s delusion is relevant. Suppose a
30 See cases cited in footnote one. The term “relatives” of course includes
spouses, who are statutory next of kin. The duty has no operation as against
wholly sane testators.
3 lBattan Singh v. Amirchand, [1948] A.C. 161, at p. 170; and Harwood v.
Baker, (1840), 3 Moo. P.C. 282, at pp. 304, 313.
32 (1870), L.R. 5 Q.B. 549, at p. 564.
33 (1829), 5 P.D. 84, at p. 92: “those who by personal relationship or otherwise
had claims upon him”.
34 (1873), L.R. 3 P. & D. 64, at p. 73: “persons who by nature or through
other circumstances, may be supposed to have claims on the testator’s bounty”.
35 Pontifical Society for the Propagation of the Faith v. Scales, (1962), 109
C.L.R. 9. The main judgment was given by Dixon, C.J., whose reputation as
a lawyer stood high, without, as well as within, Australia.
30Delusion was not set up in the Pontifical case, though as the report
shows, the testator went to some length to publicize his belief that the son
was illegitimate, though the Court found that allegation to be unfounded.
McGILL LAW JOURNAL
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son has always had a bad record, and is even in gaol at the time
his father makes a will that leaves him nothing. Can the son
attack the will and claim an intestacy because the father is shown
to have had a delusion which imputed to the son imaginary misdeeds
over and above those actually committed? If not, how bad must
his record be to make the delusion immaterial? If the son can
set up the delusion in spite of his own bad record, is the extent
of his turpitude wholly irrelevant? Should the Courts inquire
whether the son’s record would justify a wholly sane father in
disinheriting him? Or should they consider that a proved delusion
must always invalidate every will? If the Courts try to discover
whether the son’s record or the testator’s delusion is the real cause
of the disinheritance, how far are they to go? Are they to rely on the
testator’s declarations as to what factors entered into his will?
Cases could easily arise where the testator’s motives were un-
discoverable; where would the onus be then? The decisions to date
seem to furnish no answers.
D. M. Gordon, Q.C.*
* Of the British Columbia Bar.
