Legacy Loop: Summer Edition 2021

• Published date: 30 June 2021
• Subject Matter: Corporate/Commercial Law, Family and Matrimonial, Charities & Non-Profits , Wills/ Intestacy/ Estate Planning
• Law Firm: Shakespeare Martineau
• Author: Andrew Wilkinson

Welcome to the summer edition of our Legacy Loop coverage

Clitheroe v Bond (2021) EWHC 1102 (Ch)

This recent decision is significant in reiterating that the correct test when determining mental capacity to make a will is still that set out in Banks v Goodfellow (1870) and not the Mental Capacity Act 2005.

The 19^th century case of Banks v Goodfellow provides the well-established common law test for determining mental capacity to make a will and is almost always referred to by legal advisors in cases where a lack of capacity is asserted.

Background to the case

In summary, the Banks v Goodfellow test sets out that a testator must:

• Understand the nature of making a will and its effects.
• Understand the extent of the property of which they are disposing.
• Be able to comprehend and appreciate the claims to which they ought to give effect.
• Have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by will.

The level of understanding required varies with the complexity of the will itself, the assets and any claims on the testator.

In the case of Clitheroe v Bond however, the court had the opportunity to re-consider arguments that the Mental Capacity Act 2005 should replace the Banks v Goodfellow test for determining capacity, as well as examining the current test for delusions (limb 4 of the Banks v Goodfellow test).

The case concerned a dispute between a brother and sister over the validity of two wills made by their late mother. The court was asked to decide whether the mother died intestate (effectively without a will) - meaning daughter, Susan Bond, and son, John Clitheroe, would receive an equal share of the '400,000 estate - or whether her wills were valid, meaning almost all of the residuary estate would go to the son.

In the original trial, it was held that both wills were invalid due to the mother not having sufficient mental capacity to make the wills. It was found that, at the times the wills were made, their mother was suffering with complex grief reaction, 'insane delusions' and persisting depression following the death of her eldest child from cancer.

What was the outcome?

However on appeal, it was argued that the judge had applied the test in Banks v Goodfellow incorrectly when determining the mother's capacity. It was concluded that the correct test for determining capacity continues to be the Banks v Goodfellow test. It was also concluded that to establish...