A frequent means of challenging the validity of a Will is to claim that the person who gave instructions for the Will, known as “the testator”, did not have the required level of mental capacity, known as “testamentary capacity”. The relevant test for testamentary capacity was set out in the case of Banks v Goodfellow in 1870, and this has remained the basis for assessing testamentary capacity ever since.

More recently, the Mental Capacity Act 2005 became law, which dealt with various aspects of how mental capacity should affect decisions being made. As a result of this, there have been a number of cases which considered whether the Mental Capacity Act 2005 should now provide the test for testamentary capacity instead of the test in Banks v Goodfellow (Walker v Badmin [2014] and James v James [2018]).

This issue has now been considered by the High Court on appeal in the case of Clitheroe v Bond [2021] EWHC 1102 (Ch), which has confirmed this week that the test in Banks v Goodfellow remains the correct test for testamentary capacity and that this test has not been displaced by the Mental Capacity Act 2005.

Clitheroe v Bond was initially heard in 2020, and concerned the validity of two Wills. The Deceased’s eldest daughter had passed away from cancer in 2009, following which the Deceased made two Wills in 2010 and 2013. Both Wills provided predominately for the Deceased’s son, the claimant, all but cutting out the Deceased’s surviving daughter, the defendant. The Defendant challenged the validity of both Wills on the grounds that the Deceased was suffering from insane delusions caused by a complex grief reaction to her eldest daughter’s death in 2009, depriving her of the requisite testamentary capacity. The Defendant’s case was successful and the Deceased was held to have died intestate.

The test for testamentary capacity in Banks v Goodfellow (1870), is that the testator:

1. Must appreciate the nature and consequences of making a Will;
2. Must understand the extent of his or her property;
3. Should consider any moral claims to their estate; and
4. Must not be affected by any disorder of mind or insane delusion.

In the appeal in Clitheroe v Bond, the Claimant tried to argue that the test in the Mental Capacity Act 2005 should be used when considering testamentary capacity. There are two key differences between the Banks v Goodfellow test and that in the Mental Capacity Act 2005:

1. Burden of proof: The Mental Capacity Act 2005 assumes that the person in question has the requisite capacity, unless proved otherwise, whereas Banks v Goodfellow only requires for the challenger to raise ‘real doubt’ regarding testamentary capacity, for the burden of proof to change to the individual trying to propound the Will, who must then prove that the testator had the necessary capacity.
2. Testator’s understanding: The Mental Capacity Act 2005 requires the testator to be able to understand all the information relevant to the decision, whereas Banks v Goodfellow only requires them to understand points 1-3 above.

The court confirmed that Banks v Goodfellow remains good law and should be followed when determining testamentary capacity.

The appeal also sought to determine the correct test for establishing insane delusion, if the test in Banks v Goodfellow applied, however, the judge adjourned her determination on this point. The appeal has been adjourned for three months to provide the parties with time to hopefully reach an agreement and avoid further costs of proceedings.

If you have any concerns regarding the capacity of a testator when they made a Will, please get in touch Stuart Downey at stuart@downey@twmsolicitors.com.

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