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Not worth the paper it’s printed on?

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20th May 2021

Another Will challenge has recently hit the headlines, underlining how this area of law has developed (or not developed - depending on your view).

It involves a fairly long trip down memory lane (1870 to be precise) and throws light on how the world of Will drafting has evolved since then and up to the date of the inception of the Mental Capacity Act of 2005 (“MCA”). The judge in the case of Banks v Goodfellow (1870) perhaps didn’t anticipate how their words would be repeated in Courts and legal textbooks/commentary over the next 150 years later and are still going strong.

Clitheroe v Bond (2021)

By the time Jean Clitheroe died in 2017 she had made two Wills prepared by solicitors, the first in 2010 which was revoked by a later Will in 2013. No medical evidence was obtained at the time to assess her testamentary capacity in respect of either Will.

What drove Jean to change the terms of her Wills appeared to stem from the sad loss of one of her children, Debs, who died in 2009. Jean thereafter sought to effectively disinherit her surviving daughter, Susan Bond, leaving the residue of the Estate to her surviving son, John Clitheroe.

It seems mother and surviving daughter were estranged due to disagreements about treatment for Debs. Jean had also viewed Susan was a “shopaholic” and would “fritter” her Estate away so best the majority of it to John. Furthermore, Jean who was described as strong willed and stubborn at trial held suspicions that Susan had pinched some of her treasured belongings which Susan vehemently denied. There were also references to sexual abuse allegations raised by Susan against her biological father which Jean did not accept.

Turning to the matter at hand, when the terms of the Wills became known, Susan alleged her mother had been influenced by John but moreover, had lost testamentary capacity when the Wills were prepared and therefore should be declared as having died intestate, thereby leaving her modest Estate between Susan and John equally (as Debs had no children who could take her share in her place).

In any claim based upon a challenge to testamentary capacity, analysis since 1870 begins at the test laid down in Banks v Goodfellow. In essence this means the testator must:

  • understand the nature of the act and its effects;
  • understand the extent of the property of which they are disposing;
  • be able to comprehend and appreciate the claims to which they ought to give effect; and
  • not be suffering a disorder of the mind that shall poison their affections, pervert their sense of right, or prevent the exercise of their natural faculties – and further – “that no insane delusion shall influence [their] will in disposing of [their] property and bring about a disposal of it which, if the mind had been sound, would not have been made”.

So, “no insane delusions”, that sounds sensible enough. But what does that mean and how is it assessed? This would typically fall into the field of experts who would assess the testamentary capacity of a testator (and it’s usually an elderly testator) but that’s always tricky because they’re usually long gone by the time the capacity argument breaks out. When these disputes arise, one is left to review Will files, medical records, contemporaneous documents, take evidence from people who knew them and so on. It’s all quite complicated but one thing for certain is that if the matter ends up in Court, it will also be expensive as the loser will be ordered to pay the majority of the winner’s costs.

The burden of proof was upon John to establish the last Will(s) was valid. John took the opportunity at trial to assert that the best way nowadays to assess testamentary capacity was not through the prism of a case 150 years old with its references to “poison” and “delusions”; but rather by adopting a more modern test which better reflects the reality of the society we now live in on the basis of the MCA.

Unfortunately for John, he was unable to persuade the Court at first instance and the Court of Appeal that his mother was not suffering from insane delusions despite Jean’s best efforts to ensure her Estate passed only to him under the terms of her Will(s). The basis for this assessment was that Jean was suffering from an affective disorder at the material time of making the Wills, which included a complex grief reaction, 'insane delusions' and persisting depression following the death of Debs. By way of comparison, in Key v Key (2010) the testator’s updated Will which - benefited his daughters - was set aside as it was made at a time when he was still grieving the recent loss of his wife.

John also didn’t come across terribly well at trial and his version of events was questioned. At the Court of Appeal reference was made to numerous cases concerning the correct test but found that any insane delusion must be irrational and fixed (which it did) and also took the opportunity to reaffirm that Banks v Goodfellow remains the test for testamentary capacity before inviting the parties to reflect upon their positions and determine whether agreement can be reached without the expense of any further hearing.

The conflict between (1) Banks v Goodfellow and (2) the MCA 2005

In Clitheroe v Bond the Court was tasked among other things to assess whether Banks v Goodfellow was past its sell by date or whether the MCA was a better basis to address testamentary capacity?

Breaking the four part test in Banks v Goodfellow down:

  • The first test is relatively uncontroversial – one must understand they are making a Will.
  • The second test is slightly more complicated but no overly so, one must understand the extent of the property they own. This doesn’t mean the testator must know down to the last penny what they own but if they forgot they owned a mansion worth £££ believing they only had a few £ in the bank and no more, that might suggest the second test was not met.
  • The third test is more problematic, who should the testator should comprehend when thinking about who they wish to benefit? In complex family matters including second/third families/step families, that could get complicated and some people who should be beneficiaries may be innocently overlooked.
  • On the face of it, having no insane delusions speaks for itself but it is difficult to define with any precision and whilst one person’s actions may seem deluded or unwise, to another they seem quite reasonable and based on sound understanding.

How would basing testamentary capacity on the MCA change this?

The MCA is a landmark body of legislation. It established that, as far as possible, an individual should play a significant and active role in decisions about their welfare. There is also a basic presumption the individual does have decision-making capacity unless it can be proved otherwise. This is significant because, if it applied to Wills, it would reverse the burden of proof because the assumption is that capacity exists and it is for the challenger (in this case Susan) to prove otherwise. Susan would have to prove insane delusions and John would not have to prove all the tests in Banks v Goodfellow had been met, as is currently the case. Also, the MCA permits an individual to make an unwise decision (not that disinheriting a child is necessarily an unwise decision). But the MCA is used to determine the capacity of living persons, not to retrospectively assess testamentary capacity from an individual who has passed away.

Moving forward, this case re-emphasises the importance of clear instructions when preparing a Will and the value if possible of complying with the Golden Rule (which isn’t a rule of law but one of good practice) of obtaining contemporary medical evidence which may mean the parties don’t end up in Court throwing accusations at one another. It’s far cheaper and quicker to determine capacity to make a Will at the time of its drafting rather than years later before a Court working from secondary evidence.

But for now, Banks v Goodfellow remains firmly in place though realistically it is certain to face more challenges in the next 150 years.

If you require any assistance on any contentious probate matter please contact Noel McNicholas on 01926 887700 or