Tom Dumont QC and Ed Hicks of Radcliffe Chambers together with Amanda Smallcombe of Birkett Long, discuss the judgment of Mrs Justice Falk in Clitheroe v Bond  EWHC 1102 (Ch), in which they represented the successful respondent.
The appeal concerned the validity of two wills of the deceased, which effectively cut her daughter, the respondent, out of any benefit from her estate in favour of her son, the claimant. At first instance, the respondent successfully challenged both wills for want of testamentary capacity under the Banks v Goodfellow test on the basis that the deceased had suffered from an affective disorder, and formed various insane delusions and had her mind poisoned against the respondent.
On appeal, the appellant son sought to argue that the Banks v Goodfellow test for capacity had been superseded by the Mental Capacity Act 2005, challenged the Deputy Master’s approach to delusions, and challenged his approach to the expert evidence. 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that it would not be in the interests of justice to permit an appeal on the basis that Banks v Goodfellow had been superseded by the MCA 2005, but nonetheless found that Banks v Goodfellow remains good law. She also provided a detailed modern analysis of the legal test for the presence of delusions.
Tom, Ed and Amanda consider the implications of the judgment for the future of the Banks v Goodfellow test and its implications for contentious probate practice; the test for delusional beliefs; and lessons to be learned from the case in respect of expert evidence as to testamentary capacity.
You can read the judgment here.
Access the presentation slides here.
Recorded on 12 May 2021. Please email firstname.lastname@example.org if you have any questions or would like some further information.