Julie Marie Croll v The Estate of Margaret Mary Thorpe & Ors

Issue estoppel and cause of action estoppel operate only between parties and their privies. Findings in a judgment in personam are not evidence of the decision or its grounds against strangers. Under the Mental Capacity Act 2005, section 15, Court of Protection declarations concern capacity at the date of declaration, not past capacity. The Court of Protection cannot determine the validity of a will; while the testator lives, the will remains revocable and probate issues have not crystallised. Summary judgment requires no real prospect of success and no compelling reason for trial, with no mini-trial. The application was dismissed.

The claimant sought to propound her father’s 2021 will, which principally benefited her, against the estate of his widow and her executors. The defendants challenged the will on grounds including testamentary capacity, want of knowledge and approval, undue influence and fraudulent calumny.

The defendants relied on findings and orders made in earlier Court of Protection and divorce proceedings, including declarations concerning testamentary capacity and the validity of the will. The claimant and the widow’s estate had not been parties to those proceedings. The central issues were whether those proceedings created an issue estoppel or admissible evidence, and whether the Court of Protection had jurisdiction to make the declarations.

1. Disposition. The defendants’ application under the Civil Procedure Rules 1998 to strike out and/or obtain summary judgment was dismissed. The order did not determine whether the 2021 will was valid.
2. Estoppel and parties. The principles summarised in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46 and [2014] A.C. 160, drawing on Arnold v National Westminster Bank plc [1991] 2 AC 93, applied. Cause of action estoppel and issue estoppel can bar points decided, or points which should with reasonable diligence have been raised, subject to special circumstances causing injustice. Those doctrines operate only between parties and their privies. The widow was not a party to the Court of Protection proceedings. The Court of Protection judge’s factual findings therefore did not bind her estate or the defendants representing it, and were not admissible as evidence against them in this claim.
3. Court of Protection jurisdiction. Section 15 of the Mental Capacity Act 2005 authorises declarations about capacity at the date of the declaration and does not extend to past capacity. The statement endorsed in Re M (Statutory Will) [2009] EWHC 2525 (Fam) and [2011] 1 W.L.R. 344, that the Court of Protection has no jurisdiction to rule on the validity of a will, was treated as highly persuasive. The Master regarded the claimant as having a real prospect of establishing that jurisdictional limitation.
4. Timing of testamentary validity. A will remains ambulatory and revocable during the testator’s lifetime and takes effect only on death. While the testator was alive, questions concerning the will’s validity as an effective testamentary disposition had not crystallised. They were properly determinable in a probate claim, not in the Court of Protection. The divorce proceedings could not create an estoppel either, since the claimant was not a party.
5. Summary judgment. The principles summarised in Easyair Ltd v Opal Telecom Limited [2009] EWHC 339 (Ch) governed the Part 24 application. The court had to avoid a mini-trial and consider whether the claim had a realistic prospect of success and whether a trial remained necessary. The Master did not determine the merits of the will claim. Comments by Williams J indicated a likely outcome but did not create an estoppel.

First-instance decision on the defendants’ application. The judgment records that permission to appeal the earlier Court of Protection order was refused on 11 April 2024; no appellate history for the present probate claim is stated.