say that it was not merely a real possibility, but much more probably the case than
not.
229.
For all these reasons I have come to the conclusion that the 1988 and 1989 Wills
cannot stand, because Bane lacked testamentary capacity when he made them. It only
remains for me to consider the validity of the 1984 Codicil, which as I have explained
is in issue although it makes no difference to the outcome of the case. For that reason,
I shall do so briefly.
230.
The 1984 Codicil was evidently drafted for Bane by Oppenheimers, whom he had
consulted when he left the matrimonial home. The pressing need, as he was no doubt
advised, was to remove Mirjana as an executor and beneficiary of the 1974 Will. In
view of their separation, this is what any competent solicitor would have advised
pending resolution of Mirjana’s financial claims. This objective was duly achieved by
clauses 1 and 2 of the 1984 Codicil. However, the provisions of clause 2 had the
additional effects of postponing the age of Zoran’s entitlement from 25 to 35, and
introducing an ultimate trust for Mr Wigmore (who was also appointed an executor).
It is these two features of the 1984 Codicil which are said to lead to the conclusion
that Bane lacked capacity when he executed it. It is submitted that the only sensible
explanation for the change in vesting age is that it reflected a change in Bane’s
feelings for his son brought on by his developing delusions, and that there was no
rational reason for the introduction of Mr Wigmore as the residual beneficiary of the
entire estate in the event of Zoran’s death without children under the age of 35. In
particular, it is suggested that if Bane had been able to weigh up the claims of his
family in an appropriate way, he would at the very least have made Jovanka rather
than Mr Wigmore his default beneficiary.
231.
As to the first point, I do not agree that the change in vesting age reflects Bane’s
developing delusions. In my judgment the change was a perfectly rational and
understandable reaction to the removal of Mirjana’s life interest and Bane’s
increasing disappointment with his son’s lifestyle and lack of career. I find further
support for this view in the provisions of clause 3 of the 1984 Codicil, which gave his
Trustees power to pay or apply the whole or any part of the residuary estate to or for
the benefit of Zoran while he was still under the age of 35. This clearly indicates that
Bane still wished Zoran to inherit the whole of his estate, but that he did not wish him
to have the capital at his unfettered disposal until he was 35. I should add that at the
date of the 1984 Codicil Zoran was already 27 years old, so if there had been no
change in the vesting age, and if Bane had died unexpectedly, Zoran would have
inherited the entire estate immediately.
232.
The second point I have found more difficult. On the one hand, Jovanka had not been
a beneficiary under the 1971 and 1974 Wills, and she was evidently a wealthy woman
in her own right. On the other hand, the decision by Bane to make Mr Wigmore his
sole default beneficiary seems a very strange one, even allowing for the fact that he
had provided support and friendship to Bane while his marriage was disintegrating in
1984. I ask myself on what rational basis could Bane have decided to prefer the
claims of Mr Wigmore to those of his own sister in the event of Zoran dying under 35
without issue. On the evidence before me I am unable to find a satisfactory answer to
that question, and I think it is distinctly more probable than not that Bane’s decision to
exclude Jovanka was indeed influenced by his growing delusions. There is no doubt
that Bane’s delusions concerning his wife were already well-established, because they
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