Disputes & Testamentary Capacity - Important Issues & Recent Case Law

Introduction

Probate disputes are common, with testamentary capacity—and whether the testator knew and approved the contents of the will—frequently at the heart of the litigation. These cases often hinge on contested facts, such as the testator’s mental state, intentions, and family relationships, leading to unpredictable outcomes that can persist up to trial.

The high cost, delay, and stress of litigation place pressure on parties to compromise early. Realistic early assessment is crucial and requires a focus on the decisive legal issues, key evidence, and a critical view of potential weaknesses in one’s own case.

While most probate challenges settle or are withdrawn, published judgments continue to offer valuable insights into how principles are applied at trial.

This webinar will examine key issues in testamentary capacity disputes, with reference to notable recent judgments—including Leonard v Leonard, Gowing v Ward, Bond v Webster, and Crew v Oakley—as well as recent decisions on costs in Leonard v Leonard and Tucker v Felton-Page.

What You Will Learn

This webinar will cover the following:

• A reminder of the legal principles: what the Banks v Goodfellow test entails, how it compares with the provisions of the Mental Capacity Act 2005, and the rule in Parker v Felgate where the testator’s capacity has deteriorated after giving instructions for the will but before executing it
• The degree of understanding needed by the testator, with a particular focus on how the simplicity or the complexity of the will and of the testator’s affairs may make a significant difference
• The assessment of the weight to be attached to evidence given by a professional who drew up a disputed will, considering cases where criticisms of such professionals were made and how much of a difference it made to the outcome
• What circumstances following the ‘golden rule’ are likely to be treated as important?
• The use and limitations of expert evidence after the testator’s death, the question of when the best time is to seek it, and the approach to challenging unfavourable expert evidence
• Practical considerations regarding gathering documentary evidence and evidence from lay witnesses
• The relevance of concerns about capacity to alternative challenges based on undue influence and a lack of knowledge and approval, with reference to the 2025 decision of the Privy Council in Pascall v Graham
• The likelihood of being able to rely on one of the probate exceptions to the general rule that the unsuccessful party pays the costs of the successful party

This pre-recorded webinar will be available to view from Monday 8th December 2025

Alternatively, you can gain access to this webinar and 1,800+ others via the MBL Webinar Subscription. Please email webinarsubscription@mblseminars.com for more details.