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Clitheroe v Bond [2021] EWHC 1102 (Ch)

On 4 May 2021, Mrs Justice Falk gave judgment on the claimants’ appeal against the decision of Deputy Master Linwood in Clitheroe v Bond [2020] EWHC 1185 (Ch), in which he pronounced against two wills of the deceased on the basis of lack of testamentary capacity, amongst other things on the basis that the test for capacity in Banks v Goodfellow had been replaced by the test for capacity in the Mental Capacity Act 2005.

Mrs Justice Falk found that it would not be in the interests of justice to permit an appeal on the basis that Banks v Goodfellow had been superseded by the MCA 2005, given that it had been expressly conceded that Banks v Goodfellow was the appropriate test at trial, the trial had been conducted on that basis, and it would be disproportionate for the matter to proceed.  However, having heard full argument on the legal point, she proceeded to address the point, finding that the Banks v Goodfellow test remains good law and has not been overridden by the MCA.

Mrs Justice Falk also gave a detailed analysis of the proper legal test for establishing whether a delusion is present within the Banks v Goodfellow test, accepting the respondent’s argument that whether a belief is delusional requires a holistic assessment of the evidence, taking into account the nature of the belief, the circumstances in which it arose and whether there was an evidential basis for it, whether it was formed in the face of evidence to the contrary, the period of time for which it was held and whether it was the subject of any challenge.

A further challenge to the Deputy Master’s approach to the expert evidence at trial was also dismissed.

You can read the judgment here.

Thomas Dumont KC and Edward Hicks of Radcliffe Chambers acted for the successful respondent.