Confirmation of the test for mental capacity to make a will

Last week, the High Court upheld the 150-year-old common law test of mental capacity to make a will.

The decision in Re Clitheroe

An interim judgment in the case of Clitheroe, Re Probate [2021] has been delivered. Jean Clitheroe died in 2017 and had excluded her daughter, Susan, from her will. Mrs Clitheroe had left a letter of wishes detailing her reasons for excluding Susan, stating that she was a “shopaholic and would just fritter it away”.  

Following her mother’s death, Susan sought to challenge the will on the grounds that Mrs Clitheroe lacked mental capacity. She alleged that her mother suffered with ‘insane delusions’ which affected her will to the extent that she lacked the mental capacity to make a valid will (known as ‘testamentary capacity’).  

Mental capacity to make a will

The legal test for testamentary capacity is set out in the seminal case of Banks v Goodfellow [1870].

One element of the test is that the testator must not suffer with any ‘insane delusions’ or ‘disorder of the mind’ which affects the dispositions they wish to include in their will. On the facts of Banks v Goodfellow itself, the deceased believed that a local man was persecuting him. There was evidence that those beliefs were due to the deceased suffering with delusions. Nevertheless, his delusional beliefs had no bearing on the content of his will, and so he was deemed to have sufficient testamentary capacity.

However, in Mrs Clitheroe’s case, Susan alleged that her mother was suffering with a complex grief reaction due to the death of one of her other children. This was followed by depression and caused Mrs Clitheroe to experience insane delusions concerning Susan’s spending habits.

The case was considered by the High Court in May 2020 and it was held that the will was invalid because Mrs Clitheroe did not have the requisite testamentary capacity at the time she made it. Her ‘insane delusions’ were the decisive factor.

However, the deceased’s son then lodged an appeal claiming that the court had applied the wrong test of testamentary capacity in Mrs Clitheroe’s case. He argued that, instead of upholding the 1870 test in Banks v Goodfellow, the court should have applied the more modern test created by the Mental Capacity Act 2005. One important element of the 2005 test is that an individual is presumed to have the mental capacity to make a decision unless proved otherwise. Mrs Clitheroe’s son alleged that the 150-year-old Banks v Goodfellow test was outdated in modern society where conditions such as dementia are common and better understood.

Nevertheless, the court disagreed and confirmed that the Banks v Goodfellow test remains the appropriate test when looking specifically at testamentary capacity (the mental capacity to make a will).

Significance of the case

The ruling is significant because it is yet another case in recent years to confirm that the 150-year-old Banks v Goodfellow test prevails. The issue had been considered previously by the courts in a landmark decision in 2008 and this week’s ruling in Clitheroe demonstrates that the courts have not changed their approach. Whilst the introduction of the 2005 statutory test was undoubtedly shaped by society’s increased awareness and understanding of mental ill-health compared with 1870, the modern test is not relevant when it comes to making a will.

The test for mental capacity to sign other legal documents is governed by the 2005 statutory test but the threshold for testamentary capacity to make a will is high and the courts have shown their reluctance to undermine that.

The case is a reminder of the complexities of mental capacity assessments, particularly in cases where a client may appear, on the face of it, to have rational reasons for excluding a potential beneficiary. Practitioners ought to discuss with clients their family background and the reasons for wanting to exclude individuals. That way, the practitioner can assess whether those reasons appear rational or if there may be a concern about the testator suffering with delusions.  

The issue becomes even more pertinent where discussions relating to a will take place remotely via video technology rather than face-to-face. It remains best practice to always obtain a medical opinion when making a will for a person whose mental capacity is in doubt or liable to challenge.