Goss-Custard & Anor v Templeman & Ors

Summary judgment is inappropriate where a probate claim raises credible and materially disputed evidence about testamentary capacity. The court must not conduct a mini-trial or choose between apparently credible factual accounts. The applicant must show that the opposing case has no real prospect of success and that there is no other compelling reason for a trial. Testamentary capacity remains governed by the Banks v Goodfellow test. Imperfect memory does not, by itself, establish incapacity, and the law does not require a testator to understand every collateral consequence of a disposition. Where witness evidence, expert evidence and documentary material require assessment at trial, the application should be refused.

The claimants sought probate in solemn form of the deceased’s 2008 Will. The first and second defendants challenged the Will on testamentary-capacity grounds and counterclaimed in respect of the 2001 Will and 2004 Codicil. They applied under CPR 24.2 for summary judgment pronouncing against the 2008 Will.

The evidence included disputed accounts of the deceased’s memory and intentions, solicitor’s attendance notes, witness statements and expert psychiatric evidence. The central issue was whether the defendants had shown that the claimants had no real prospect of establishing testamentary capacity, or whether the disputed evidence required determination at trial.

1. Application dismissed. The defendants had not shown that the claimants had no real prospect of proving that the deceased possessed testamentary capacity when the 2008 Will was instructed, discussed and executed. There was also a compelling reason for the claim to proceed to trial. The claim was directed to be listed for trial, with further directions to be addressed.
2. Under CPR 24.2, summary judgment requires both the absence of a real prospect of success and the absence of any other compelling reason for trial. A summary judgment hearing is not a summary trial. The court should assess the merits only so far as necessary to determine whether the case has sufficient substance to proceed. Choosing between credible competing factual accounts is ordinarily the function of the trial judge.
3. The governing test of testamentary capacity remained that stated in Banks v Goodfellow: the testator must understand the nature and effects of the act, understand the extent of the property being disposed of, appreciate the claims to which effect should be given, and be free from a disorder or delusion that affects the disposition.
4. The defendants’ reliance on the deceased’s apparent failure to recall the 2004 Codicil did not establish incapacity as a matter of law. Simon v Byford confirmed that capacity depends on the potential to understand and is not equivalent to a test of memory. The law does not require understanding of every collateral consequence of a disposition.
5. The documentary evidence, witness evidence and expert report raised genuine issues about the deceased’s mental state, his reasons for the 2008 Will and the reliability of the competing accounts. Those matters required cross-examination and findings of fact. The allegation concerning lifetime gifts was disregarded as an unhelpful distraction from the issue of testamentary capacity.

Not stated in the judgment.