Family Justice Courts Case Highlights

Even if the testator suffers from a serious mental illness, such as dementia, at the material time of executing the will, the court is not precluded from finding that the testator had testamentary capacity.

A formal mental capacity assessment is significant, after a poor score in a Mini-Mental State Examination.

The armchair principle does not mandate a factual inquiry into what the Testator’s real intention might have been, separate from the words used, nor does it in any way permit the substitution of a speculated intention for the expressed intention.

The court’s inquiry into the actual intentions of a transferor of property is a fact-specific process.

A caveator will not be liable for costs if he insists that the applicant of a grant of probate proves the formality of the will and if he wishes to cross-examine the witnesses. However, if the caveator goes beyond that and challenges the will, he now becomes the “mover” or “plaintiff” responsible for starting the contentious probate proceedings and as a result may be liable for security for costs.

The doctrine of res judicata consists of three different but interrelated principles. The role of an administrator and the applicable regime as it relates to an administrator differ from that of a trustee of an estate.