Choosing to challenge a Will is not a decision to be taken lightly. Any experienced, highly-regarded Civil Litigation Solicitor will tell you that testamentary freedom is a cherished part of English law and not one that the Courts are prepared to readily tamper with. However, there are some cases where it is abundantly clear that something went wrong when the Will was made, and the Courts must intervene.
The recent High Court decision in Re Clitheroe (Deceased)  EWHC 1102 (Ch) is an example of where the Courts will uphold a challenge to a Will. Furthermore, it confirmed that despite being decided in 1869, the test for testamentary capacity set out in Banks v Goodfellow remained good law.
The background to the decision
The Respondent, Sue Bond was almost entirely cut out of her mother’s Will. The Testator called the Respondent a ‘shopaholic’ and believed her daughter would ‘fritter away’ any money left to her. The Testator had also accused the Respondent of stealing various items from her home including her treasured set of Harry Potter books. Therefore, she bequeathed most of her estate to the Appellant, Ms Bond’s brother.
The County Court Judge found that the Testator’s beliefs were irrational to the point of being delusional. He also accepted expert evidence that showed the Testator was suffering from an affective disorder which included a complex grief reaction and depression which impaired her testamentary capacity.
Ms Bond’s brother appealed the decision on the grounds that the County Court Judge should not have applied the Banks v Goodfellows test and instead should have applied the test under the Mental Capacity Act 2005. He also argued that the Judge had misapplied the test regarding whether the Testator suffered from delusions when he said it was not necessary to prove that she could not be talked out of her beliefs.
The High Court’s ruling
The High Court reviewed the case law which confirmed that the Banks test had not been superseded by the Mental Capacity Act 2005. Under the Banks test, the following needs to be present for testamentary capacity to exist:
- The Testator must understand the nature of making a will and its effects.
- The Testator must understand the extent of the property of which they are disposing.
- The Testator must be able to understand and appreciate the claims to which they ought to give effect (i.e. who can bring a claim against the Will).
- The Testator must 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 Court observed that there was nothing within the Mental Capacity Act 2005 indicating that determining the validity of a Will was one of its purposes or powers. Although it was important not to simplify the distinction between the test for capacity under the Mental Capacity Act 2005 and the Banks test to merely one of whether the person whose capacity is in question is living or dead, it was relatively clear from the terms of the Act that Parliament did not intend to alter the common law test for testamentary capacity provided by the 152-year-old case.
Regarding the correct test for delusion, the Court once again turned to an ancient case, that of Dew v Clark and Clark 162 E.R. 410,  1 WLUK 63 which established the legal concept of ‘insane delusion’ – a Testator’s false conception of reality that may invalidate a Will altogether, or one or more of its provisions. For a delusion to exist, it had to be:
- more than a simple mistake that could be corrected
- irrational and fixed in nature, and
- out of keeping with the Testator’s background.
Justice Falk concluded that Dew did not lay down an absolute rule that a delusion could only exist if it were shown that it was impossible to reason the Testator out of the belief.
The case was adjourned for three months to offer the siblings a chance to reach an agreement without the expense and distress of a further Court hearing.
This case is one of many clarifying that the Banks v Goodfellow test remains good law in testamentary capacity cases. Further test cases will inevitably be brought in the future, however, for now, the Courts have made clear that Banks may be an ‘oldy’ but it is still a ‘goody’.
Please note that this blog is intended for information purposes only and does not constitute legal advice.