During the early weeks in November there were two cases in the Probate Court before Mr. Justice Barnes of interest to the Association. They were both questions in which the validity of wills was contested on the ground of insanity in the testators. In the first case, Brown and Baker v. Pain, the facts were briefly as follows:—A gentleman who had been employed as clerk in the Courts of Justice, and who for several months before the final breakdown in his mental health had been unfit for even simple copying work. When seen by an expert in June, 1894, he was suffering unmistakably from general paralysis of the insane in an advanced stage, so that he had no knowledge of time or place, and was quite incapable of taking care of himself or of recognising his duties and responsibilities. The real question at issue was whether within a short time (two or three weeks in fact) of that period he might have been able to dispose of his property. The trial lasted five days (see “Times,” November 7th, 8th, 9th, 12th and 13th), and there was the usual amount of conflict as to the capacity of (Mr. Toogood) deceased at or about the end of May, 1894. There was only one medical witness to support the sanity of the deceased shortly before the time at which he made his will, and this witness was not particularly strong as to his mental capacity. On the other hand, a doctor who saw him frequently and Dr. Savage considered it very unlikely that deceased could have made a valid will at the time alleged. In cross-examination the latter witness was asked what he considered to be the points proving capacity in a testator, and he said that he considered the following to be essential:—First, a knowledge of the property to be devised; second, a knowledge of the relatives who might be benefited; third, a just appreciation of the testator's relationship to his friends and relatives; fourth, power of self-control, enough to prevent undue influence; and finally, memory of recent and more distant events. This definition was accepted by the judge and counsel as good and falling in with all legal judgments. Considerable stress in cross-examination was laid upon the periods of remission, or, as they were called, lucid intervals, which may occur in general paralysis of the insane, and Dr. Savage in cross-examination admitted that in general paralysis of the insane it is common to have intervals during which responsibility may exist to the full. It will be remembered that only last year the same question was raised (re Crabtree) as to the validity of a will made by a general paralytic during a remission, and it seems to be established that during lucid intervals testamentary acts may properly be performed. In the end the jury found for the will, which was made within so short a time of the full development of symptoms of general paralysis of the insane. This case once more bears out the common experience that an English jury will very rarely upset a fairly reasonable will on any grounds whatever, and that unless a very distinct insanity can be made evident before the drawing up of the will, the plea of insanity afterwards will be of little value.
Brown and Baker v. Pain, Sprake v. Day
