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CONTESTING A WILL WITH WILLCLAIM SOLICITORS NO WIN NO FEE SPECIALISTS – WHAT IS THE CORRECT TEST OF MENTAL CAPACITY IN WILL DISPUTE CASES

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss what the correct test of mental capacity is in Will dispute and Will contest claims

Why is there an issue with the appropriate test for mental capacity in Will dispute and Will contest claims?

We have touched on this in a numerous previous blogs, see for example:
www.willclaim.com/contesting-a-will-with-willclaim-com-understanding-capacity-to-make-a-will/

The basic point is this. An individual must have sufficient legal testamentary capacity to make a valid Will. It is determined in accordance with a test laid down in a case called Banks v Goodfellow. In the following article, the Law Society Gazette provide a helpful synopsis:
www.thegazette.co.uk/all-notices/content/100844

The test for capacity to execute a valid will is based in case law. A testator must:
• Understand the nature of making a will and its effects.
• Understand the extent of the property of which they are disposing.
• Be able to comprehend and appreciate the claims to which they ought to give effect.
• 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 level of understanding required by the test varies according to the complexity of the will itself, the testator’s assets and the claims on the testator (Banks v Goodfellow (1870) LR 5 QB 549).

What has caused a rethink?

The Mental Capacity Act 2005 (the “MCA”) offers an alternative capacity test. This has created a potential conflict between the test of mental capacity to make a Will set down in caselaw in Banks v Goodfellow (above) and the requirements of the MCA. For instance, in section 3 of the MCA, it is put as follows:
www.legislation.gov.uk/ukpga/2005/9/section/3

3Inability to make decisions


(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable
(a)to understand the information relevant to the decision, (b)to retain that information, (c)to use or weigh that information as part of the process of making the decision, or
(d)to communicate his decision (whether by talking, using sign language or any other means).

(2)A person is not to be regarded as unable to understand the information relevant to a decision if he is able to understand an explanation of it given to him in a way that is appropriate to his circumstances (using simple language, visual aids or any other means).

(3)The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent him from being regarded as able to make the decision.

(4)The information relevant to a decision includes information about the reasonably foreseeable consequences of
(a)deciding one way or another, or
(b)failing to make the decision.

These are different to the tests under Banks v Goodfellow aforesaid.

What does Clitheroe v Bond say?

Clitheroe v Bond (2021) EWHC 1102 (Ch) is a recent decision on which capacity test should apply in Will dispute and Will contest cases. Here is the link to the actual decision:
www.bailii.org/ew/cases/EWHC/Ch/2021/1102.html

The reason for the debate in Clitheroe appeared to lie in the question of who bore the burden of proof; the Will propounder (the person who is claiming the Will is valid), or the individual whose case lies against the legal validity of the Will in the Will dispute or Will contest claim.

The MCA appeared to offer a different burden of proof to the usual common law approach because it assumes the person whose mental capacity has been questioned, has retained capacity until proven otherwise (section 1 (2):

1 The principles
(1)The following principles apply for the purposes of this Act.
(2)A person must be assumed to have capacity unless it is established that he lacks capacity.

However in Will dispute or Will contest claims there is a presumption of capacity if the Will is duly executed and appears rational on its face, unless the objector raises a real doubt about capacity. A part of a Judgment in Key v Key (2010) EWHC 408 (Ch) by Mr Justice Briggs was so cited:


The burden of proof in relation to testamentary capacity is subject to the following rules:

i) While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face, then the court will presume capacity.

ii) In such a case the evidential burden then shifts to the objector to raise a real doubt about capacity.

iii) If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity nonetheless.

See Generally Ledger v. Wootton [2007] EWHC 2599 (Ch) per HHJ Norris QC at paragraph 5.

In Clitheroe it appears to have been better for the applicant for the MCA test to be applied; thus entailing the respondents who were claiming the Will was invalid, to prove it. In Clitheroe the appeal to determine which test should be applied was not been allowed. The Judge also went on to rule that in any event the Banks test has not been overridden by the MCA.


If you consider any of these facts and matters are of interest, are likely to apply to you, or you would like to ask us for more information about our no win no fee arrangement, or you simply want us to assess your claim, then please do not hesitate to contact us for a confidential no strings chat and/or visit us at www.willclaim.com.

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