UK: Clitheroe v Bond [2020] - Testamentary Capacity Revisited?

The judgement in Clitheroe v Bond (2020) breathes new life into the Banks v Goodfellow test but also highlights the difficulty in the application of any defined test when it comes to matters of mental capacity. The case also highlights the importance of the Golden Rule and the importance of expert medical opinion in situations where there can be any doubt as to testamentary capacity (as well as clear potential for dispute).

The case

The deceased Jean Clitheroe had three adult children: Debra, Sue and John. Debra died from skin cancer in 2009 aged 46, after which Jean was profoundly affected. In 2010 and 2013 Jean executed two wills, both appointing John as executor and with John as residuary beneficiary, with little or no (latterly in 2013) provision for Sue. Jean died in 2017.

John issued proceedings to admit both wills (2013 and as a fall back 2010), Sue defended the claim to admit the Wills to Probate, disputing the validity of the wills on the basis of Jean's testamentary capacity. Sue therefore presented the argument for Jean dying intestate. Under the wills, John would have been (substantively) the sole beneficiary, whereas under intestacy the estate would pass equally between John and Sue.

At first instance (Clitheroe v Bond [2020] EWHC 1185 (Ch)) the Deputy Master (Master Linwood) found that both wills were invalid on the basis that Jean lacked testamentary capacity as she was suffering from an extreme reaction to grief that amounted to lack of testamentary capacity with which to execute a will. John appealed the first instance decision, concentrating on whether the age-old test for testamentary capacity (Banks v Goodfellow (1870)) had been impacted by the provisions of the Mental Capacity Act 2005. He also argued that the Master's application of the test for lack of mental capacity through 'delusion of the mind' had been incorrectly applied.

The test

The test to determine testamentary capacity has long been established under the principles set out in the seminal case of Banks v Goodfellow (1870) LR 5 QB 549, under which a testator must understand:

• The nature and effect of a Will
• The general extent of their estate that they are disposing of under the Will
• The persons whom the testator would normally be expected to provide for in their Will (even if they then choose not to provide for them) and be free from any 'delusion of the mind' that would cause them to deviate from that normal expectation.

In addition, the 'golden rule' comes hand in hand with the Banks v Goodfellow test and stipulates that a solicitor should ensure that when preparing a will for an aged or previously unwell testator that capacity and understanding of the testator has been established by a medical practitioner.

The claimant John appealed the decision, one central basis of the appeal was that Jean had mental capacity under the Mental Capacity Act 2005, and therefore the wills would be valid for testamentary purposes. This in essence placed before the Court (in the most comprehensive fashion since the MCA 2005) the competing tests for mental capacity set out under common law (Banks v Goodfellow) and that set down by statute.

The appeal Clitheroe v Bond [2020] EWHC 1185 (Ch)

Appeal was granted and the judgement was handed down by Falk J on 4 May 2021.

The two main areas of law considered in the appeal were firstly, whether the Banks v Goodfellow test has been replaced by the capacity test in the Mental Capacity Act 2005 in relation to testamentary capacity. Secondly, if Banks v Goodfellow is indeed still the accepted law on testamentary capacity, then what is the test for 'delusion of the mind/insane delusion' under the 3^rd limb of the Banks v Goodfellow test.

As to the first point, Falk J stated that the MCA 2005 does govern important areas of mental capacity, such as those under Court of Protection proceedings and making decisions on behalf of someone without mental capacity. However, Falk J found that the MCA 2005 does not extend to establishing whether a person had capacity to enter into a transaction. Falk J held that the Banks v Goodfellow test has not been overridden by the MCA 2005, and so she saw no reason to depart from 'well established' case law [82]. The MCA 2005 provides clear statutory parameters for capacity, but Falk J held that the Banks v Goodfellow test should still be applied for assessment of retrospective testamentary capacity.

In determining the last limb of Banks v Goodfellow, Falk J detailed that in establishing whether a testator was suffering from an insane delusion, that a 'holistic assessment' must be made of the individual's state of mind, their beliefs and any evidence in support of, or contrary to the delusional beliefs. Falk J found that the fact that a testator's wishes (or the delusion) could not have been changed even in the face of reasoned and clear evidence to debunk the illusion, was not material in the application of the test.

The delusion which would affect testamentary capacity must not be restricted to clinical definitions but must be 'irrational and fixed in nature' [153]. Falk J then adjourned the proceedings relating to the issue of delusion, on the basis that not enough time remained for the hearing to deal with both parties' claims in full on this issue. The parties were directed to consider the costs position of continued litigation on the point of delusion and encouraged them to use the stay in proceedings to reach settlement.

In summary, it is very welcome to receive updated Court authority as to the interaction between the established common law test for capacity and the position under the MCA 2005. However, it remains to be seen whether John and Sue continue their fight, or whether a settlement can be reached; further consideration as to the meaning of 'delusion' under the test would certainly be welcomed. The case does also highlight the importance of the de facto 4^th limb to Banks test (the Golden Rule) and the importance of expert medical opinion in situations where it is likely to reduce the possibility of dispute.

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