The High Court’s recent decision in Parfitt v Jones & Anor | [2025] EWHC 1552 (Ch) is a lesson in how not to challenge a Will on capacity grounds. It exposes the mistakes that can turn a weak case into an expensive disaster. For practitioners, the judgment provides both a reality check and a roadmap for handling these sensitive disputes properly.
The legal challenge
Mary Wadge died in September 2018 at the age of 85, leaving behind two daughters, Vicky and Carolyne. Her Will, signed in 2008, was as much a reflection of family fracture as it was of financial planning. Vicky, with whom Mary had been estranged since 1994, received nothing directly. Yet Mary did not cut ties entirely with that side of the family: she left 25% of her residuary estate to Vicky’s children, a gesture that suggested lingering care for her grandchildren even if her relationship with their mother had reached a point of no return.
The Will was contested by Vicky and her late brother’s wife, Svetlana. Their attack on the Will was multi-pronged, citing lack of testamentary capacity, want of knowledge and approval, and undue influence said to have been exerted by Carolyne, who had remained close to her mother and was a principal beneficiary.
The capacity challenge rested on claims that Mary had been showing signs of progressive dementia for years before 2008, accelerating after 2009. The medical records, however, told a different story. While some memory lapses and confusion were noted in 2009, a formal dementia diagnosis did not arrive until mid-2013 – over five years after the Will had been executed.
The Court’s approach
The judge dismissed the capacity challenge. A central point was the inadequacy of the expert evidence presented by the claimants. The clinical psychologist’s view that Mary lacked capacity in 2008 was found to be “inadequately reasoned and evidenced.” Merely pointing to signs of memory loss was not enough; what mattered was whether those issues undermined the specific mental abilities needed to make a Will.
The court reaffirmed that mild or even moderate memory problems do not automatically equate to incapacity. Testamentary capacity requires, among other things, understanding the act of making a Will, the extent of one’s property, and the claims of potential beneficiaries. The judge noted that Mary had been “positively scrupulous” in identifying those who might expect provision, including those she ultimately chose to exclude.
Timing was another decisive factor. The fact that dementia was only diagnosed in 2013 made it difficult to argue that she had lacked capacity in 2008. The court stressed that capacity must be judged at the time the Will is made, not with hindsight coloured by later decline.
As for undue influence, the claim failed for lack of evidence. Although Carolyne was present when Mary gave instructions to HSBC and the solicitors, the safeguards of independent professional advice and direct communication between Mary and her advisers were enough to satisfy the court that Mary acted of her own volition.
The legal foundations that matter
The judgment in Wadge serves as a timely reminder of the core legal principles that underpin disputes over Wills, especially where capacity is questioned. For lawyers advising on the making of a Will, or on a challenge to one, grasping these principles is essential, as they define the boundaries within which such cases are decided. In its reasoning, the court showed how these well-established rules still offer strong protection for a testator’s wishes, while ensuring there are safeguards in place when genuine concerns about capacity arise.
- Starting with capacity, not incapacity
The law begins with a simple but powerful assumption: people are capable of making their own decisions. This presumption of capacity isn’t just a legal nicety – it’s a fundamental protection for individual autonomy. Anyone wanting to overturn that presumption faces an uphill battle and needs compelling evidence, not just suspicions or family grievances.
- Banks v Goodfellow
The Victorian case of Banks v Goodfellow still sets the standard for testamentary capacity today. But it’s often misunderstood. The test doesn’t require perfect mental health or flawless memory. Instead, it asks whether the testator understood what they were doing (making a Will), knew roughly what they owned, appreciated who might expect to benefit, and wasn’t suffering from delusions that affected their decisions. Despite her memory problems, Mary Wadge was found to be fully understanding as to the nature of her decisions when she made her Will, and as such demonstrated testamentary capacity.
- The golden rule
Solicitors talk about the “golden rule” – getting medical evidence of capacity when taking instructions from elderly or vulnerable clients. The Wadge case shows why this matters. The judge noted that HSBC and their solicitors should have considered a capacity assessment. Had they done so, the expensive litigation that followed might never have happened. Sometimes a £500 medical report can save £50,000-£100,000 or more, in court costs.
Common pitfalls with expert evidence
This case offers a great example of what not to do when instructing expert witnesses in capacity challenges. The court identified several critical flaws in the expert evidence that practitioners would do well to learn from.
The expert had relevant academic qualifications in clinical psychology and neuropsychology, but the absence of medical qualifications or experience as a treating clinician reduced the weight of his opinion. Academic expertise, while valuable, cannot fully substitute for hands-on clinical experience when assessing capacity retrospectively.
Perhaps more significantly, the expert never examined the deceased, which limited the value of his conclusions about her mental state. This fundamental limitation was compounded by the fact that those instructing the expert failed to provide him with witness statements from people who knew Mary. Given that he couldn’t form a direct impression of her mental state through examination, these contemporaneous accounts from family, friends, and professionals would have been invaluable in building a complete picture of her cognitive abilities at the relevant time.
Most damaging to the expert’s credibility was that his conclusion was poorly reasoned and evidenced. The expert failed to identify specifically what decisions Mary was unable to make due to her memory problems, instead making broad assertions about her incapacity without explaining how her particular symptoms would have affected her ability to understand the nature and consequences of making a Will.
Practical guidance for legal practitioners
Where a Will is challenged after the testator’s death, the evidential task becomes significantly harder, making the quality of expert medical evidence, and the instructions underpinning it, absolutely critical.
The quality of expert evidence in capacity cases depends entirely on the quality of instructions given to experts. When instructing medical experts, practitioners must be rigorous in their approach. It’s crucial not to assume that all medical professionals are experts in capacity assessment – relevant experience, credentials, and past cases in testamentary capacity should be carefully verified. The distinction between general medical expertise and specialised knowledge of capacity assessment can make or break a case.
Capacity is both decision-specific and time-specific, so instructions must clearly specify whether assessment concerns capacity to make a Will, lasting power of attorney, or other specific decisions. The temporal aspect is particularly important, as the Wadge case demonstrates – a later diagnosis of dementia cannot retrospectively prove earlier incapacity. Experts need comprehensive information including all relevant medical records, witness statements, and background information to form properly reasoned opinions.
When taking Will-making instructions, solicitors should always consider whether capacity assessment is appropriate for elderly or potentially vulnerable clients. The process should be thoroughly documented, with care taken to ensure the client gives instructions directly, even when accompanied by family members.
The Court’s strong words
The judge’s criticism was particularly pointed, describing the challenge as “rather unsavoury and disrespectful to the dead to advance what I regard as a groundless case that a clearly capable testatrix lacked testamentary capacity.” This serves as a warning that unfounded challenges may attract judicial criticism and potentially adverse costs consequences.
The decision provides a benchmark for best practice and a warning about the consequences of pursuing unfounded challenges to perfectly valid Wills, reinforcing fundamental principles about testamentary capacity while providing practical guidance on expert evidence.
This ruling underlined memory impairment alone does not equal incapacity, and that challenging a Will requires substantial, well-reasoned evidence rather than speculation or hindsight. Most importantly, it reminded us that the presumption of capacity remains strong and that those seeking to overturn it must meet a demanding evidential burden.
