{"id":4185,"date":"2021-07-05T15:53:00","date_gmt":"2021-07-05T15:53:00","guid":{"rendered":"https:\/\/simplylaw.waydevelopers.com\/england-wales\/the-test-for-testamentary-capacity-in-will-disputes\/"},"modified":"2024-05-26T16:17:43","modified_gmt":"2024-05-26T16:17:43","slug":"the-test-for-testamentary-capacity-in-will-disputes","status":"publish","type":"post","link":"https:\/\/simply.law\/england-wales\/blog\/the-test-for-testamentary-capacity-in-will-disputes\/","title":{"rendered":"Testing Times for Will Disputes Involving Mental Capacity"},"content":{"rendered":"

A recent High Court interim judgment appears to pour cold water on the current view that the correct test for testamentary capacity in the 21st Century should be the Mental Capacity Act 2005<\/i> (MCA 2005) and not the 1870 case of Banks v Goodfellow<\/i>.<\/p>\n

The case<\/h2>\n

In Clitheroe v Bond<\/i>, 2020 EWHC 1185 Ch, the case involved the Wills (one made in 2010 and another in 2013) of Mrs Joan Clitheroe, who died in 2017 leaving almost the entirety of her estate to her son, John, thereby cutting her daughter Susan Bond out of the inheritance.<\/p>\n

Susan disputed the Wills<\/a> arguing that her mother was having insane delusions. John defended the Wills. In the first instance, the court ruled on the basis of the test for mental capacity as proved in Banks v Goodfellow and overturned the Wills so that Susan would receive half the estate.<\/p>\n

John appealed and his disputed Wills solicitors <\/a>argued that the correct test should be the MCA 2005 as the prevalence of senile dementia has increased significantly and our understanding of the condition makes the Banks v Goodfellow test outdated.<\/p>\n

MCA 2005 states that a person must be assumed to have mental capacity unless the lack thereof has been proven and the fact that a person made an unwise decision is not proof of mental incapacity.<\/p>\n

It was also argued that the judge in the first instance had misapplied the Banks v Goodfellow delusions test.<\/p>\n

Banks v Goodfellow<\/h2>\n

While the law has developed significantly since the late 19th Century the principles of Banks v Goodfellow as the test for determining testamentary capacity<\/a> have changed little.<\/p>\n

The test holds that a person making a Will must:<\/p>\n