were the reason for the breakdown of his marriage. It is equally clear that the next
objects of Bane’s delusions were his sister and his mother, and by the end of 1984 it is
common ground that his delusional belief system was fully established. In those
circumstances I am not satisfied, on the balance of probabilities, that Bane’s decision
to exclude Jovanka in favour of Mr Wigmore was uninfluenced by his delusions.
Indeed, I think, on balance, that it probably was so influenced. Accordingly, I must
conclude that Bane already lacked testamentary capacity when he made the 1984
Codicil, with the consequence that it too cannot stand.
233.
I return finally to the question of law which I identified at the start of this judgment in
paragraph 15. In view of the conclusions which I have reached, it is unnecessary for
me to resolve it because it would make no difference to the result. The question is
one of some interest, and I heard full argument on it; but anything I said on the subject
would be obiter, and I think it better to leave its resolution to a case where it would
make a difference to the outcome. I would only say that the point is very seldom
likely to be of any practical significance, because it must be a rare case indeed where
the Court is satisfied, on the balance of probabilities, that a testator’s delusions did not
in fact influence the dispositions in his will, but nevertheless considers that the
delusions were likely to influence them. It is perhaps for this reason that the question
does not seem to have troubled the Courts over the 137 years since Banks v
Goodfellow was decided in July 1870.
Conclusion
234.
For the reasons which I have given, this action succeeds and I will pronounce against
the 1989 Will, the 1988 Will and 1984 Codicil. It follows that probate must be
granted of the 1974 Will. It also follows that none of the questions of construction
which would need to be decided if the 1989 Will were valid need to be decided.
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