KOSTIC v CHAPLIN AND OTHERS [2007] EWHC 22298 (CH)

Testamentary capacity of a testator suffering from mental illness

FACTS

• 1970s: Father made wills by which the son was sole beneficiary

• Since the mid 1980s: Father had suffered from delusional disorder, believing that there was a globe conspiracy of dark forces against him in which the son were implicated.

FACTS

• 1988 and 1989: Father made two wills leaving his entire estate (more than GBP 8 million) to the Conservative Party Association

• The son sought a pronouncement against the two wills made in 1988 and 1989

LEGAL ISSUE

• General rule: (1) A will may be revoked by the testator at any

time before his death

(2) A will is revoked by making a new will which deals with the same property (s 20 Wills Act 1837)

• The issue:

Whether or not the father had testamentary capacity to make the 1988 and 1989 wills?

APPROACH OF THE COURT

• Banks v Goodfellow Applied

“It is essential to the exercise of such a power … that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties — that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”

APPROACH OF THE COURT

• Examples of seriousness of the delusional disorder of the testator

Believed all female members of the family trying to poison and harm him

Prepared a list of proposed criminals including his bankers, colleagues, solicitors, IRA and the Mafia

Adopted a peripatetic existence, living in hotels and changing his address frequently …

JUGEMENT

• The father's decision to disinherit the son in the wills was heavily influenced by his delusions. His insane delusions brought about a disposal of his property that would not have been made if he had been of sound mind. Accordingly, the testator lacked testamentary capacity when he made the 1988 and 1989 wills.

Squatters’ Rights

J.A. Pye (Oxford) Ltd and Another v UK

• 31 December 1983: Grahams Failed to vacate land

• January - September 1984: Factual Possession

• September 1984 - 1999: Adverse Possession

• 12 years Limitation Period expired in September 1996

• Limitation Act 1980

• Land Registration Act 1925

• (Land Registration Act 2002)

Article 1 Protocol 1

Peaceful Enjoyment of Possessions

No one deprived of those possessions

• Except:• In public Interest.• In conditions provided for by law• by general principles of international law.

Land Registration Act 2002

Adverse Possession: 10 yearsButRegistered owner must be notified of

applicationRegistered owner has 2 years to regularise

situationIf NotSquatter can become registered owner

Application to the Lands Tribunal by the Mahavir Foundation [2007]

Reported in the Property Law Bulletin Nov 2007

Is it appropriate to discharge or modify a restrictive covenant to enable a religious

organisation to build a temple in a residential area?

Facts of the case

• Purchase of the cottage & the restriction• Application for removal or modification of the

restrictive covenant

Arguments for removal or modification of the restriction

• under the Land of Property Act s.84 (1) (a) the restriction was obsolete

– (a) that by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Lands Tribunal may deem material, the restriction ought to be deemed obsolete

• in accordance with s.84. (1) (aa) the proposed use of the site constituted a reasonable use in a multi-faith society

– (aa) that in a case falling within subsection (1A) below the continued existence thereof would impede some reasonable user of the land for public or private purposes or, as the case may be, would unless modified so impede such user

• The restriction does not give the residents of the estate any practical benefit or significant advantage

Lands Tribunals Rulings

• the restriction was not obsolete – basic purpose of the restrictive covenant – the demolition of the mansion did not render

the restriction obsolete

– Reminder (a) that by reason of changes in the character of the property or the neighbourhood or other circumstances of the case which the Lands Tribunal may deem material, the restriction ought to be deemed obsolete

• the proposed use of the site did not constitute a reasonable use

– relatively wide spread of the members who would be using the temple

– a more suitable site could be found – already a place of worship nearby

– Reminder - (aa) that in a case falling within subsection (1A) below the continued existence thereof would impede some reasonable user of the land for public or private purposes or, as the case may be, would unless modified so impede such user

• The persons entitled to the benefit of the restrictive covenant did receive practical benefits of substantial value and advantage

– gatherings with substantial numbers of people – traffic associated with large gatherings

– Goes against the reason why the restriction was imposed

– the only effective way of preserving the rights and power of the residents

What do we learn from the case?

Do not spend large amounts of money on purchase and planning without first establishing that any

restrictive covenant can be modified or discharged.