Clitheroe v Bond [2020] - Testamentary Capacity Revisited?

Publication Date17 May 2021
SubjectFamily and Matrimonial, Wills/ Intestacy/ Estate Planning
Law FirmRadcliffesLeBrasseur
AuthorMr Jonathan Shankland and Polly Wesson

The judgement in Clitheroe v Bond (2020) breathes new life into the Banks v Goodfellow test but also highlights the difficulty in the application of any defined test when it comes to matters of mental capacity. The case also highlights the importance of the Golden Rule and the importance of expert medical opinion in situations where there can be any doubt as to testamentary capacity (as well as clear potential for dispute).

The case

The deceased Jean Clitheroe had three adult children: Debra, Sue and John. Debra died from skin cancer in 2009 aged 46, after which Jean was profoundly affected. In 2010 and 2013 Jean executed two wills, both appointing John as executor and with John as residuary beneficiary, with little or no (latterly in 2013) provision for Sue. Jean died in 2017.

John issued proceedings to admit both wills (2013 and as a fall back 2010), Sue defended the claim to admit the Wills to Probate, disputing the validity of the wills on the basis of Jean's testamentary capacity. Sue therefore presented the argument for Jean dying intestate. Under the wills, John would have been (substantively) the sole beneficiary, whereas under intestacy the estate would pass equally between John and Sue.

At first instance (Clitheroe v Bond [2020] EWHC 1185 (Ch)) the Deputy Master (Master Linwood) found that both wills were invalid on the basis that Jean lacked testamentary capacity as she was suffering from an extreme reaction to grief that amounted to lack of testamentary capacity with which to execute a will. John appealed the first instance decision, concentrating on whether the age-old test for testamentary capacity (Banks v Goodfellow (1870)) had been impacted by the provisions of the Mental Capacity Act 2005. He also argued that the Master's application of the test for lack of mental capacity through 'delusion of the mind' had been incorrectly applied.

The test

The test to determine testamentary capacity has long been established under the principles set out in the seminal case of Banks v Goodfellow (1870) LR 5 QB 549, under which a testator must understand:

  • The nature and effect of a Will
  • The general extent of their estate that they are disposing of under the Will
  • The persons whom the testator would normally be expected to provide for in their Will (even if they then choose not to provide for them) and be free from any 'delusion of the mind' that would cause them to deviate from that normal expectation.

In addition, the 'golden rule' comes hand in hand...

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