This article provides an overview of Parker v Felgate (1883) 8 PD 171, a leading case on testamentary capacity and knowledge and approval where a will is drafted on clear instructions, but the testator’s condition deteriorates before the will is signed.
Background
AOrdinarily, testamentary capacity is required at execution of a will. Problems can arise where a testator gives clear and rational instructions while they have capacity, but later loses capacity before the will can be executed.
Parker v Felgate addresses what level of understanding is required at the moment of execution in those circumstances, particularly where the will was prepared in accordance with the testator’s earlier instructions.
Parker v Felgate – Facts
The testator suffered from Bright’s disease. She instructed her solicitor to prepare a will dealing with her property, and at the time she gave instructions she was of sound mind.
Before the will was executed, her condition worsened and she fell into a coma. She was later roused so that the will could be executed. At execution, she was asked whether she wanted the will signed for her, and she indicated her assent.
The will was challenged on the basis that she lacked capacity at the time of execution and that certain clauses were included without express instructions or clear approval.
Parker v Felgate – Decision
The Court held that a will can still be validly executed even if, at the time of execution, the testator is not in full possession of all their faculties, provided that the will accurately reflects instructions given when the testator had capacity and, at execution, the testator recognises that the document is the will intended to give effect to those instructions and accepts it on that basis.
Sir James Hannen P described three situations in which a will may be validly executed:
- The testator recalls and understands the detailed instructions previously given.
- The testator does not fully recall the instructions, but can approve each provision if it is explained.
- The testator cannot review all details, but understands that the document presented is a will prepared on their previous instructions, and confirms that intention.
On knowledge and approval, the Court also held that any clause introduced by the drafter without express instructions or clear subsequent approval could not stand.
Key principles
Where a will is drafted in accordance with instructions given when the testator had capacity, it may be enough that, at execution, the testator understands they are executing the will intended to reflect those instructions, even if they cannot recall the contents in full.
If additional clauses or alterations are included, there must be either specific prior instruction or clear subsequent approval at the time of execution.
Conclusion
Parker v Felgate remains a key authority on the relationship between capacity when instructions are given, the drafting process, and what must be understood at execution. It illustrates that English law can show some flexibility to uphold a testator’s intentions where instructions were clear and rational, but the testator is no longer able to revisit every detail at the moment of execution. However, that flexibility has limits: the will must reflect the earlier instructions, and any additional provisions must be properly authorised and approved.
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