Probate lawBy Lesley King, College of Law, LondonClaims and capacityTwo interesting cases were reported recently; the first, on the difficulty faced by former spouses bringing Inheritance Act claims, and the second on the importance of the presumptions relating to testamentary capacity and knowledge and approval.

Daphne Parish (Applicant) v Evelyn Caroline Sharman (Respondent) LTL 15 December 2000 Inheritance (Provision for Family and Dependants) Act 1975.

Application by spouse where decree nisi obtained but no decree absolute.

Parties having gone 'separate ways'.The facts of this case were slightly unusual.

The applicant, P, and her husband married in 1967 and had two children.

They separated in 1985 and P applied for a divorce.

She obtained the decree nisi in August 1985 but never applied for the decree absolute.

The parties had not applied for financial provision.

After his death, she applied for an order under the 1975 Act.The trial judge determined that, as there had been no decree absolute, P was entitled to make an application as a former spouse.However, the judge had various matters to consider, including conduct.

It was relevant that the applicant had not applied to have the decree made absolute and had allowed the deceased to believe that they were divorced.By not applying for ancillary relief she lulled the deceased into a false sense of security that their financial affairs had been sorted out 'once and for all'.

The judge concluded that, taking all the factors into account, she failed to show that the deceased had failed to make reasonable financial provision for her, applying the definition in s.1(2)(a) of the Act.

P now appealed.

The Court of Appeal approved the decision.

Once the judge had found that, on separation, the applicant and the deceased had gone their separate ways with each making no claim upon the other, the claim was hopeless.Richards v Allan, LTL, 18 December 2000This decision is unsurprising, but a good illustration of the effect of the presumptions which relate to testamentary capacity, knowledge and approval.The testatrix, who was 84, was admitted to hospital suffering from uncontrolled diabetes and dehydration.

Her medical notes indicated that she was very confused.

Her physical and mental condition remained poor even after her discharge.Shortly after leaving hospital, and at the suggestion of the defendant, A, whom she had known for more than 20 years, she gave instructions for a will appointing A to be her sole executrix and beneficiary.A's brother-in-law, a solicitor, prepared the will on the basis of instructions relayed by A.A arranged for the testatrix to sign the will at a time when her sister was absent.

The testatrix was visited by her doctor in the morning and by a friend in the evening.

Both said they found her confused.

A contended that the testatrix had validly executed the will between the two visits.The will was found invalid.

There is a presumption that mental states continue.

The testatrix's confusion was a serious and continuing problem resulting from the diabetes and her medication.

It was not credible that the will had been executed in a lucid interval between two periods of confusion.As a beneficiary had procured the execution of the will, there was no presumption of knowledge and approval of the contents of the will.

A had to prove it and had failed to do so.