Disputes & Testamentary Capacity - Lessons Learned from Recent Case Law

Introduction

A steady stream of probate cases continues to come before the High Court and while many cases are compromised there are lessons to be learned from those cases which reach trial - especially those where both parties are professionally represented.

Disputes typically turn on hotly contested issues of fact, and it is a frequent occurrence for the parties to present radically different accounts of the testator’s mental state and the family dynamics.

Perhaps the most frequently litigated issue of all in probate claims is testamentary capacity.

A number of cases in recent years have considered the limitations of the views that professional will-makers form of their client’s mental state.

The appeal decision in Re Clitheroe focused largely on the issue of delusions, which by their nature may not be readily apparent.

Other decisions since 2022 such as Hughes v Pritchard, Boast v Ballardi, St Clair v King and Williams v Williams are important for how to evaluate the evidence of will-making professionals in context, and in particular the role of the ‘golden rule’.

The difficult to predict nature of probate claims as well as worries about the costs, delay and stresses of litigation all increase the pressure to enter a compromise that does not reflect the likelihood of the will challenge succeeding at trial.

It is therefore vitally important for all parties to be able to assess the merits of the case realistically at the earliest possible stage.

This requires a focus on the legal issues which would decide the outcome at trial and on the facts and evidence that are likely to carry weight with a judge.

This webinar will discuss those issues by reference to recent and notable case law.

What You Will Learn

This webinar will cover the following:

• A reminder of the legal principles: the Banks v Goodfellow test, which was recently confirmed to remain the applicable test by the decision in Re Clitheroe
• Comparing the common law test with the test under the Mental Capacity Act 2005
• The degree of understanding needed, with a particular focus on the caselaw concerning the difficult question of what role the giving of assistance to the testator or absence of assistance plays when assessing capacity
• The recent discussion in the caselaw about insane delusions, particularly focusing on the appeal decision in Re Clitheroe
• The special case of a deterioration in capacity after instructions for a will are taken: the rule in Parker v Felgate
• The extent to which doubts about capacity make a difference to challenges based on undue influence and a lack of knowledge and approval
• The assessment of the weight to be attached to evidence given by a professional who drew up a disputed will, particularly in light of recently decided cases
• The use and limitations of expert evidence after the testator’s death, and the question of when the best time is to seek it
• Gathering documentary evidence and evidence from lay witnesses

This webinar was recorded on 22nd February 2024