The much anticipated appeal following the case of Clitheroe v Bond has been handed down. For many they will breathe a sigh of relief that the test to be followed when assessing capacity of a testator, after death, remains the long established case law of Banks v Goodfellow - for now at least. Many others however will question the wisdom of having seemingly two systems in place to assess capacity: the other being of course being the criteria of the Mental Capacity Act.
Mrs Justice Falk considered that the case of Banks was "sufficiently flexible to take account of developments" and cited the well-known case of Key v Key (considering the effect of bereavement on capacity to make a will) as an example. Paragraph 82 of the judgment concluded that the MCA does not override Banks and Mrs Justice Falk expressed her view that the High Court was unlikely to be able to overturn it, even if it wanted to.
Another factor in the decision was the way in which the test for capacity was dealt with at the original trial. The test was argued on the grounds Banks was the correct test to apply and therefore Mrs Justice Falk concluded "...it would not be in the interests of justice to allow the question whether testamentary capacity should be determined using the MCA test rather than the Banks test to be pursued on appeal (although, if it were, I would have concluded that the Banks test continues to apply)." We may therefore have to wait a little longer to see if a challenge against capacity is tried on the grounds that the MCA is or should be the correct test and potentially await a decision of the Court of Appeal on the matter for absolute clarity.
Mrs Justice Falk adjourned the aspect of the appeal concerning the interpretation of 'delusion' to allow the parties further time to try and reach a resolution. With what are no doubt significant costs for all parties it is a reminder to all that settlement can and should be attempted whenever possible, no matter what stage proceedings have reached.
Clitheroe, Re Probate [2021] EWHC 1102 (Ch)
Finally, I note that in Sharp v Adam some doubt was expressed at [82] about whether the Court of Appeal would have been able to depart from Banks. In my view I should certainly not attempt it.
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