Testamentary Capacity – 150-year old test outdated?

13 April 2021

Testamentary Capacity – who holds the burden of proof and is the current 150-year old test outdated?

Last year, Susan Bond successfully overturned her mother’s Will which left her entire estate to her son, John Clitheroe, on the grounds that she lacked testamentary capacity to make a Will. John Clitheroe is now appealing to the High Court claiming that the common law test to determine testamentary capacity, set out in Banks v Goodfellow (1870), is outdated. Mr Clitheroe argues that the Court should apply the standards set out in the Mental Capacity Act 2005 which provides an assumption that a testator (the person making a Will) has the necessary capacity to do so.


In her 2010 Will, Jean Clitheroe left most of her £325,000 estate to her son, leaving only a ring and a bracelet to her estranged daughter Susan Bond. In her final Will in 2013, Jean decided to leave Susan nothing, calling her a ‘shopaholic’ and claiming that she would ‘fritter away the inheritance’

After her mother’s death Susan applied to the court, stating that Jean was suffering an acute affective disorder, brought on by the grief caused by her eldest daughter’s death in 2009, and did not have the mental capacity to create her will.

Judge John Linwood determined that John Clitheroe did not provide enough evidence to the court to prove that his mother was of sound mind, and that Jean was not acting under ‘insane delusions’ concerning Susan at the time of writing her Wills in 2010 and 2013. Applying the finding in Key v Key (2010), which provided that an affective disorder could be considered a disorder of the mind that could pervert one’s sense of right, the Court determined that both Wills were invalid. As a result, the estate was to be split equally between Susan and John.

What is the current law?

 The test laid out in Banks v Goodfellow (1870) is the standard common law test to determine if a testator/testatrix has the capacity to write/change their will.

A testator must:

  • Understand the nature of making a Will and its effects.
  • Understand the extent of the property of which he is disposing.
  • Be able to comprehend and appreciate the claims to which he ought to give effect.
  • Have no disorder of the mind that perverts his sense of right or prevents the exercise of his natural faculties in disposing of his property by will.

In applying this test, where reasonable doubts are raised regarding a testator’s capacity, it is up to the person trying to uphold the Will to prove that the testator had the capacity to make it. If they are unable to prove that the testator had capacity to make a will, then it is presumed that the testator lacked testamentary capacity and the Will is invalid.

The Mental Capacity Act 2005 (‘MCA 2005’) largely repeats the Banks v Goodfellow test but provides that a person should be presumed to have mental capacity until proven otherwise. When this Act was passed it was believed that the burden of proving testamentary capacity had shifted to the person challenging the Will. However, the rulings in subsequent cases have continued to follow the test in Banks v Goodfellow and that the burden rests with the person trying to uphold the will in circumstances where reasonable doubts are raised about the testator’s capacity.

John claims that the test laid out in the MCA 2005 is a more modern and appropriate tool to determine testamentary capacity and, if applied to his case, his mother’s Wills would have been valid. He says that his mother knew what she was doing and she had clear and consistent intentions when writing her Wills in both 2010 and 2013, and that the courts initial ruling was an ‘unwarranted infringement’ on his mother’s rights to determine the fate of her estate.

If successful, the results of John Clitheroe’s case could result in wide-ranging changes to how the courts approach wills and mental capacity going forward.

For detailed advice relating to Wills and Probate or any issue pertaining to your or a loved one’s estate, our Wills and Probate and Dispute Resolution teams at Redkite have a wealth of knowledge of advising clients in this area.

Click here for more information on our Wills, Probate & Estates Services, and to speak to our team.

Click here for more information on our Dispute Resolution services, including Contested Probate expertise, and to speak to our team.

This article was produced for Redkite Solicitors by Joshua Jones and Caitlin Harris. To visit their profiles follow the links below:-

Joshua Jones

Caitlin Harris


The contents of this article are intended for general information purposes only and shall not be deemed to be, or constitute legal advice. We cannot accept responsibility for any loss as a result of acts or omissions taken in respect of this article.