Long standing test for testamentary capacity defended by High Court ruling

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When it comes to establishing testamentary capacity, the Courts will always apply the test established by Banks v Goodfellow 1870. A key aspect of the test is that the testator ‘is not affected by any disorder of the mind that influences his Will in disposing of the property.’

Back in September 2020, we covered the case of Clitheroe v Bond 2020 which involved a claim that the testamentary capacity of Jean Clitheroe was impaired by a complex grief disorder triggered by the death of one of her children.

Mrs Clitheroe had made Wills and letters of wishes in which she explicitly disinherited her daughter, Susan Bond, and left the entire £325,000 estate to her son, John. The reason behind the decision to omit Susan from her Will was the belief that she would not use the money wisely.

As executor and trustee of his mother’s Wills, John made a probate application but this was challenged by Susan. In the case that followed, it was argued by the claimant that the disorder manifested itself in depression and ‘insane delusions’ in which Susan was the target.

The High Court ruled that Mrs Clitheroe had suffered insane delusions and therefore she did not have testamentary capacity in respect to either Will. On that basis, Susan’s challenge was successful and the residuary estate was set to be divided equally between her and John.

John appealed this decision, arguing that it had been wrong to apply the Banks v Goodfellow test in this case and that the test for ‘delusions’ has not been applied correctly in light of the evidence available.

However, the High Court has ruled that the Banks v Goodfellow was correctly applied and has dismissed the assertion that the Mental Capacity Act 2005 might have a role to play in determining the validity of a Will and, consequentially, the outcome of such cases.

On the question of delusions, Mrs Justice Falk concluded: ‘In order to establish whether a delusion exists, the relevant false belief must be irrational and fixed in nature. It not an essential part of the test that it is demonstrated that it would have been impossible to reason the relevant individual out of the belief if the requisite fixed nature can be demonstrated in another way, for example by showing that the belief was formed and maintained in the face of clear evidence to the contrary of which the individual was aware and would not have forgotten.’

The appeal has now been adjourned for three months to allow the parties to reflect and attempt to reach an out-of-court agreement and avoid the growing costs created by the litigation.