In the recent case of Clitheroe v Bond [2021] EWHC 1102 (Ch), the landmark test established in Banks v Goodfellow [1870] for assessing testamentary capacity has been upheld by the High Court.

The facts of the case concerned Jean Clitheroe, who died in 2017. Jean had three children, Debra, Susan (the Defendant) and John (the Claimant/appellant). Debra sadly passed away in 2009 which affected Jean deeply.

Prior to her death, Jean had prepared two wills, dated 21 May 2010 and 3 December 2013 respectively. Under both wills, John was to inherit the majority of Jean’s estate.

John issued court proceedings to prove the validity of both wills, with Susan defending, arguing that Jean suffered serious grief following the death of Debra, and that this should be enough to render both wills invalid on the grounds of lacking testamentary capacity. In 2020, Deputy Master Linwood found in favour of Susan, holding that Jean suffered from an affective grief disorder following the death of Debra, and that both wills were invalid.

Mrs Justice Falk gave permission to appeal.

In the two-day appeal heard in the High Court recently, HHJ Falk held that the Mental Capacity Act 2005 has not replaced the test in Banks v Goodfellow, and that Banks v Goodfellow is still the correct test to apply for the issue of establishing testamentary capacity.

This is a welcome judgment from HHJ Falk, as there had been suggestions in some previous cases that the Mental Capacity Act 2005 test might have superseded the common law test established in Banks v Goodfellow.

In making this judgment, HHJ Falk endorsed the decisions in Walker v Badmin [2014] EWHC 71(Ch) and James v James [2018] EWHC 43(Ch).

If you would like advice about a will dispute or any type of contentious probate case, please call 01902 424927 and ask to speak to one of our specialist contentious probate lawyers. Alternatively, please e-mail us at contentiousprobate@georgegreen.co.uk providing a brief summary of the issues you wish to discuss with us, along with your contact details.

We have a dedicated practice team of contentious probate solicitors, covering all areas of the UK (with offices near Birmingham and in Wolverhampton) who are experienced in dealing with all types of contentious probate matters, including challenging a will and estate disputes.

We also have a team of probate lawyers who can assist if you wish to review you current will or to make a will for the first time.

We offer an initial no obligation telephone consultation for contentious probate disputes and we can sometimes act for clients who want to contest a will or commence an inheritance dispute/probate dispute on a no win no fee basis.