Appeal challenges established test for testamentary capacity

A recent High Court case has many asking: has the established test for testamentary capacity had its day?

In the case of Clitheroe v Bond, heard by the High Court earlier this year, Susan Bond was successful in arguing that her mother’s 2010 and 2013 Wills were invalid because her mother lacked the mental capacity to make a Will at the time she made them.

Susan’s brother, John Clitheroe, is appealing the decision on the basis that (1) the Banks v Goodfellow test for testamentary capacity applied in this case has been superseded by the test for capacity set out in the Mental Capacity Act 2005 and (2) if the test in Banks v Goodfellow does apply, the Judge used the wrong test for establishing an insane delusion.

The accepted test for testamentary capacity is set out in the 1870 case of Banks v Goodfellow, which provides that a person must:

  1. know that they are making a Will and what its effect will be;
  2. broadly understand what they own;
  3. be aware of those people for whom they should provide; and
  4. not be suffering from a disorder of the mind (eg an ‘insane delusion’) that influences how they dispose of their property.

In Clitheroe v Bond, the Judge found that a person is suffering from an ‘insane delusion’ if one ‘can[not] understand how any man in possession of his senses could have believed such… a thing’.

The Judge found that Mrs Clitheroe was suffering from a ‘complex grief reaction’ following the death of her other daughter, Debs, in 2009.  This caused her to hold certain irrational beliefs about Susan (insane delusions) which resulted in her cutting Susan out of her Wills and leaving almost her entire estate to John.

Because the Judge was persuaded that Mrs Clitheroe cut Susan out of her Wills due to her insane delusions, he found that the 2010 and 2013 Wills were invalid.  Mrs Clitheroe had not made any earlier Wills so this meant that her estate would be shared by Susan and John equally under the rules of intestacy.

The question of the correct test for testamentary capacity was raised in the 2015 case of Walker v Badmin in which the Court found that ‘the correct and only test’ for testamentary capacity is that which is set out in Banks v Goodfellow.

Katie Emerson is a solicitor specialising in inheritance and trust disputes at Barker Gotelee, Ipswich solicitors.

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