• Rose & Rose

Mental Capacity Regarding Wills and Probate Disputes

Updated: Jun 29


The High Court have adjourned the case of Clitheroe v Bond, two siblings in the midst of a Probate Dispute regarding their late mother’s estate. It had been previously ruled that the mother’s mental capacity was not satisfactory at the time of writing her two Wills, rendering them invalid.



What is a Will & Probate Dispute?

Contentious Probate – also known as a Will Dispute – relates to the disagreement or dispute of a deceased persons estate, whether it be regarding the division of assets or a dispute of the validity of the Will itself. If a beneficiary does not like what they have been left, this is not regarded as sufficient grounds for contesting a Will. You must believe that the Will doesn’t implement the person who wrote the Will – the ‘testator’s – wishes, but still, this is hard to legally prove. If you have any reason to think the Will is invalid or has not been executed correctly, you can speak to a Will & Probate lawyer to see if you have sufficient grounds to enter into a Will Dispute.


Do you need help or advice about Wills & Probate? Get in touch with our specialist team of Solicitors at Rose & Rose today. Call 0208 974 7490 or email us at info@roselegal.co.uk and we will get back to you.


In the case of Clitheroe v Bond, if the court ruled the mother had died intestate – without having a Will – then her estate would have been split equally between the siblings Susa Jane Bond and John Keith Clitheroe. If the two Wills were ruled as valid, Clitheroe (the son) would have obtained nearly the entire estate.

Deputy Master Linwood introduced the question over the mother’s mental capacity in the original trial after it was discovered that she was suffering from ‘insane delusions’ and serious depression and grief after the sudden death of her eldest child.

Clitheroe appealed this by claiming the wrong approach was taken when deciding his mother’s capability at the time to write either Will. He argued the Judge’s consideration into whether it was impossible. You can read the full article by Jemma Slingo here.



What is meant by Mental Capacity?


The Mental Capacity Act 2005 (MCA) applies to individuals who lack the mental capacity to make decisions for themselves, from what they want for lunch, to who they want their estate to go to when they pass away. People with Dementia, Alzheimer’s, a brain injury and those with severe learning disabilities would all be applicable to the Mental Capacity Act. It Is there to keep these individuals safe and to ensure they are not taken advantage of.

More specifically to Wills and Probate, a person’s legal and mental ability to make amendments and alterations to their Will is described as Testamentary Capacity which is based in case law.



How is Testamentary Capacity decided?


A test must be carried out in order to determine the capacity of an individual to execute a valid Will. The testator must meet this criteria for their Will to be ruled as valid in the case of a dispute.

They must;

  • Have a full understanding of what it means to make a will and the effects of what they are agreeing to

  • Acknowledge and understand the weight the document holds and the extent of what they are giving away

  • Have no mental disorders that may distort their morality and judgement



If you are facing a Family Dispute and would like some advice, please contact our Family Dispute department lead by Zubair Dharamsi at zd@roselegal.co.uk or call 0208 974 7490.


If you would like to make a Will or a Lasting Power of Attorney (LPA), please contact our Wills & Trusts department lead by Sally Ann Joseph at sj@roselegal.co.uk or call 0208 974 7490.