Providing Clarity for Testamentary Capacity

Lucy Scurfield
Lucy Scurfield

Published: October 11th, 2022

7 min read

Clitheroe v Bond

The Appeal Court has agreed with the judgement at first instance and decided that the correct legal test for testamentary capacity is the Banks v Goodfellow test rather than that under the Mental Capacity Act 2005.

The claim was initially brought by Susan Bond who sought to challenge the Wills of her mother, Jean Clitheroe. Jean had left Wills in 2010 and 2013 with her son, John Clitheroe as residuary beneficiary and essentially disinherited Susan.

Following Jean's death in 2017, Susan claimed that Jean had suffered severe grief after the death of a daughter in 2009 which manifested in severe depression and "insane delusions" regarding Susan. As a result of these conditions, Susan challenged the validity of the Wills on the basis that Jean lacked testamentary capacity.

At the first trial in May 2020, the Wills were ruled invalid and the estate was to be split equally under the rules of intestacy. The Judge at first instance, applying the Banks test, found that "Jean was at the material terms suffering from an affective disorder which included a complex grief reason and persisting depression, which impaired her testamentary capacity".

John appealed the decision. He had always maintained that their mother was not depressed and most of the delusions were actually true. He argued that whilst their mother had not had a full psychiatric assessment when drafting the Wills, practitioners had always found she had capacity. His main ground of appeal was that the incorrect test had been applied - it should have been the test under the Mental Capacity Act 2005.

The appeal was dismissed. The Wills were deemed invalid and so Jean had died intestate.

The Courts maintain that the relevant test when assessing the Deceased's capacity to make a Will is the one established in Banks v Goodfellow. Find out more about the grounds for contesting a Will here.

Client here to view the full Judgment.

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