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Mental Capacity and Wills; is the law out of date?


An appeal to the High Court reported in the Daily Mail on 29th March 2021 has brought attention to a ‘150 year old inheritance law’ which, it is claimed, is out of date and an ‘unjust’ restriction on the freedom of individuals to dispose of their estate in a will.

The dispute is between John Clitheroe and his sister Sue, over their late mother Jean’s 2013 will, which disinherited Sue who her mother described as a ‘shopaholic’. Almost all of Jean’s estate, worth £325,000 was left to John when she died in 2017. Sue challenged the validity of two wills that had been made (the one in 2013 and an earlier one made in 2010 both in favour of John). In 2020 both wills were overturned, so that Jean was found to have died intestate, with her estate then to be shared equally between John and Sue.

Sue’s successful argument was that her mother had suffered from a complex grief reaction from 2009, when Jean’s other daughter, Debs, had died of cancer aged 46.  Jean was found to have suffered from an ‘affective disorder’ which resulted in depression and ‘insane delusions’ regarding Sue.

There are two tests that may be applied to determine whether someone has the necessary mental capacity (called testamentary capacity) to make a will:

  1. the common law test established by the case of Banks v Goodfellow (1861-73) – the ‘150 year old inheritance law’ referred to, and
  2. the statutory test introduced by the Mental Capacity Act 2005 (MCA)

In the case of Banks v Goodfellow it was said:

‘It is essential to the exercise of a [testamentary] power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties-that no insane delusion shall influence his Will in disposing of his property and bring about a disposal of it which, if he mind had been sound, would not have been made.’

It’s important to say that if Jean Clitheroe had made her 2013 will for reasons which were merely capricious, frivolous or mean, this would not have invalidated her will. The issue for the court to decide was whether her reasons were the product of insane delusions or a poisoning of the mind by reason of a mental disorder. In this case, the court considered the test based on the 1873 case of Boughton v Knight, which states that you must put to yourself this question and answer it, ‘Can I understand how any man in possession of his senses could have believed such and such a thing?’ and if the answer you give is, ‘I cannot understand it’, then the person is not sane.

Since the MCA came into force, there has been confusion as to whether the Banks v Goodfellow test for testamentary capacity has been superseded by the statutory test. Is the law out of date and unjust as John Clitheroe says?

The 2014 case of Walker v Badmin went some way towards clarifying the position.

In that case, the judge compared the two tests and identified the following two key differences between them:

  1. under the Banks v Goodfellow test, the burden of proof falls initially on the party claiming incapacity. If that party produces sufficient evidence to raise ‘real doubts’ as to the testator’s capacity, the burden will shift to the defendant to prove that the testator had capacity. In contrast, the statutory test presumes capacity unless it is proven otherwise – so the burden of proof remains throughout on the party claiming incapacity.
  2. under the statutory test, the testator is required to understand all of the information relevant to the decision, including the reasonably foreseeable consequences of the decision. The common law test only requires the testator to appreciate the claims to which he ought to give effect in the Will.

These differences make the statutory test harder than the common law test; it makes it potentially more difficult for the validity of a will to be challenged. This is of course why John Clitheroe would prefer the court to apply the MCA test, so that the court would presume that Jean did have capacity and all the burden would fall on his sister to persuade the court otherwise.

Importantly, the judge in Walker v Badmin said that the MCA was only intended to apply to living, incapable individuals. Where the validity of the deceased’s will is in question, the common law test set out in Banks v Goodfellow continues to apply. This followed in the footsteps of the 2008 decision of Scammell V Farmer, in which it was held that the question of whether a particular testator had capacity when a Will was made also did not fall within the scope of the MCA. The 2018 case of James v James also confirmed that the MCA did not apply to questions of testamentary capacity and applied only to actions to be taken by living individuals. As the judge said in that case, referring to the MCA:

“If it wished to, Parliament could have said clearly that the Act was to apply to retrospective decisions on capacity too, but it did not.”

John Clitheroe, having lost 50% of his inheritance, is hoping to successfully argue that the judges were wrong in Walker,  Scammell and James; it will be very interesting to see whether the High Court agrees with him or not.  Certainly my experience is that it is already very difficult to overturn a will on the grounds of capacity and I suspect that the court will not be sympathetic to the idea of extending the remit of the MCA to apply to will disputes.

Sarah Young

Sarah Young – Director & Solicitor

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