Test for mental capacity when making a will is upheld

The test for mental capacity when making a will is upheld

May 26th, 2021

Adrian Lyon, Solicitor

The High Court has upheld a landmark case from 1870, called Banks v Goodfellow, when assessing the mental capacity of somebody to make a Will.

The validity of wills based on mental capacity is an increasingly common question. As people live older, there are sometimes questions as to whether they have the mental capacity to make a Will. This can lead to disappointed family members seeking to challenge a Will that they don't like.

In Clitheroe v Bond [2021] EWHC 1102 (Ch), Jean Clitheroe's two wills from 2010 and 2013 were disputed based on a lack of mental capacity. Jean had three children called Debra, Susan and John. Debra sadly died in 2009, which caused Jean significant mental health issues that would affect her until she died in 2017.

In 2010 and 2013, Jean made wills which gave the majority of the estate to John. After Jean died in 2017, John sought to satisfy the Court that the wills were valid and to have the 2013 will admitted to probate. Susan argued that both wills were invalid as Jean lacked mental capacity. Susan argued, amongst other points, that Jean had an affective grief disorder.

Last year, the Court agreed with Susan and held that the wills were invalid. The outcome was that Jean's estate passed in accordance with intestacy rules meaning that Susan would receive one half of the estate.

The decision of the Court was based on the rule set out in Banks v Goodfellow from 1870, which provides that a person making a will must:

  1. Know the nature and effect of making a Will;
  2. Know roughly what assets they own;
  3. Know the people to whom they ought to consider giving their estate to; and
  4. Not be suffering from a disorder of the mind which perverts their sense of right.

An important part of the test in Banks v Goodfellow is that the person arguing that the will is valid (in this case, John) has to prove on the balance of probabilities that the will-maker did have capacity. If the will is rational on its face, there is a presumption that the will is valid and the burden of proof then shifts to the objector (in this case, Susan) to show that the will is invalid. However, if they can raise a real doubt that there may be mental capacity issues, the burden then shifts back to the person arguing that the will is valid.

John appealed the decision from last year on several grounds, one being that the Court should instead apply rules under the Mental Capacity Act 2005 in order to determine mental capacity. In short, this Act provides that everybody is presumed to have mental capacity unless it is established that they do not.

The Court has however dismissed this approach, and held that the rules under the Banks v Goodfellow case still apply.

The case is a welcome clarification of the legal position. It also serves as a reminder to those making a will that they ought to seek professional legal advice. The adviser can assess mental capacity, make a referral for a medical opinion if necessary and make careful notes to explain the wishes of the will-maker. Such evidence can be crucial in avoiding later dispute and making sure that the will-maker's wishes are their genuine wishes made in sound mind.

We have a team here at Langleys that specialise on contentious probate issues and will disputes. For a confidential initial discussion please contact us or ring 01522 888 555

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