Clitheroe, Re Probate

For testamentary capacity, the common-law test in Banks v Goodfellow (1870) LR 5 QB 549 continues to apply. The Mental Capacity Act 2005 does not replace it for determining the retrospective validity of a will. A new legal point may be refused on appeal where it would have changed the evidence or trial, caused prejudice, or created disproportionate cost. An insane delusion requires an irrational and fixed false belief, but proof that the person could not have been reasoned out of it is not essential. Fixedness may be shown by persistence despite clear contrary evidence or absence of any rational basis. The assessment is holistic. An apparently irrational, unjust or unfair will is not invalid solely for that reason.

John Clitheroe appealed against Deputy Master Linwood’s refusal to admit his mother’s 2010 and 2013 wills to probate on the ground of incapacity. The decision followed a five-day trial involving factual and expert evidence. The appeal challenged the use of the Banks v Goodfellow test rather than the Mental Capacity Act 2005 test, the approach to delusions, the evaluation of expert evidence, and the refusal to admit the wills.

The respondent also sought to adduce further evidence. The central issues were whether the new statutory argument could be raised on appeal and whether the findings concerning affective disorder and delusional beliefs disclosed an error of law or fact.

1. New point on appeal. The court refused permission to raise the argument that testamentary capacity should be determined under the Mental Capacity Act 2005. The discretion is governed by the overriding objective and requires consideration of all relevant circumstances. The court must be cautious where the point would require new evidence or a differently conducted trial. Other relevant matters include prejudice, the nature of the lower-court proceedings, proportionality, the amount at stake, the importance of the issue and whether the opposing party could be protected in costs. Those considerations made it unjust to permit the point in this case. The principles discussed in FII Group Test Claimants v HMRC [2020] 3 WLR 1369 did not require a different result.
2. Applicable capacity test. The court stated that, even if the point had been permitted, the common-law test in Banks v Goodfellow (1870) LR 5 QB 549 would continue to govern testamentary capacity. Sections 1 and 2 of the Mental Capacity Act 2005 operate for the purposes of that Act and its decision-making regime. They do not create a complete code for the retrospective validity of transactions. The Act’s provisions concerning statutory wills and other specific transactions did not demonstrate that the MCA test governed ordinary probate validity. Clear statutory words would have been needed to displace the settled common-law rule.
3. Delusions. A delusion requires a false belief that is irrational and fixed, and out of keeping with the person’s background. It is not an essential part of the test to prove that an actual or hypothetical attempt to reason the person out of the belief would fail. Fixedness may instead be demonstrated by persistence in the face of clear contrary evidence known to the individual, or by the absence of any rational basis for forming and maintaining the belief. The assessment should be holistic and consider the belief’s nature, origin, evidential basis, duration and any challenge. The court expressed concerns about whether some of the Deputy Master’s findings established fixed beliefs, but did not determine Grounds 2 and 3 because the further-evidence application and related issues remained unresolved.
4. Expert evidence and result. The Deputy Master was entitled to prefer Professor Jacoby’s evidence to that of Dr Series. The reasons were sufficient when read in the context of the evidence and submissions. The Deputy Master was entitled to find that Jean suffered from an affective disorder impairing testamentary capacity. Grounds 4 to 6 did not establish an error. The appeal was adjourned for three months to allow the parties to consider mediation or agreement without a further hearing or remittal.

• High Court (Chancery Division), on appeal: The court refused to permit the new statutory-capacity argument, rejected Grounds 4 to 6, left Grounds 2 and 3 undetermined, and adjourned the appeal for three months.
• High Court (Chancery Division), Deputy Master Linwood: The Deputy Master refused to admit the 2010 and 2013 wills to probate on grounds of incapacity in [2020] EWHC 1185(Ch).