Clitheroe v Bond - the appeal

Banks v Goodfellow remains the test for capacity to make a will

Following a two-day appeal in the High Court in the case of Clitheroe v Bond [2021] EWHC 1102 (Ch), HHJ Falks has endorsed the decisions of Walker v Badmin [2014] EWHC 71(Ch) and James v James [2018] EWHC 43(Ch). The test in Banks v Goodfellow is the correct test to apply when considering the question of testamentary capacity retrospectively and has not been swept away by the Mental Capacity Act 2005.

HHJ Falks ruled that the issue of whether the Banks v Goodfellow test or the Mental Capacity Act 2005 test should apply was not one to be raised in the Clitheroe v Bond case on appeal. Given the modest value of the estate and the fact that there has already been a five-day trial at first instance, it would not further the overriding objective to deal with cases justly and at proportionate cost to allow the appeal on this point. 

Counsel for Mr Clitheroe, Mr Sachdeva QC, argued that the issue of which test applied was a pure point of law. However, Counsel for Mrs Bond, Mr Dumont QC, argued that because the parties had agreed at trial that the correct test to apply was that set out in Banks v Goodfellow and as a consequence the trial had been conducted on that basis, to allow the appeal would be to change the goalposts.  

Cross examination of the experts in the case had been on the basis that under the test in Banks v Goodfellow, the burden of proof was on Mr Clitheroe and it affected the focus of the factual dispute. Deputy Master Linwood had made findings based on the Banks v Goodfellow test and not about whether the requirements of the Mental Capacity Act 2005 were met. 

The other important point of law in the appeal was whether, if Banks v Goodfellow applies, what is the proper test for establishing an insane delusion. HHJ Falks adjourned her determination on this ground of appeal because there was insufficient time at the appeal hearing to deal with applications made by both parties under Ladd V Marshall [1954] 1WLR 1489 to adduce fresh evidence on the issue. 

The appeal has been adjourned for a period of three months to allow the parties time to reach agreement and avoid the costs of a further hearing on this issue. In doing so, HHJ Falks made a number of observations to assist the parties in their discussions.

Whilst the point about the test for insane delusions remains to be decided, confirmation from the High Court as to the correct test to be applied to establish testamentary capacity is greatly welcomed. 

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