Bray v Pearce

Judge: (Chancery Division) (Mr M H Rosen QC, sitting as a Deputy High Court Judge)

Citation: Unreported

With thanks to Martyn Frost for bringing this to our attention (and Constance McDonnell for confirming certain points), we note this further case relating (inter alia) to the question of whether the MCA 2005 applies to the determination of testamentary capacity outside the Court of Protection.

In this case the deceased died on 1 September 2008 when 98 years old. She had made wills on 14 November 2005, 23 November 2007 and 7 December 2007. Each of those wills made Mr Pearce, the deceased’s window cleaner, the principal beneficiary and the last will her only beneficiary. Previous wills, the last dated 7 August 2003, made the deceased’s nephew her main beneficiary with gifts to various Jewish and animal charities.

The last will was proved in common form by the named (solicitor) executor on 18 November 2008. The nephew brought a claim for the revocation of that grant, declarations against the validity of the 2005 and November 2007 wills and proof in solemn form of the August 2003 will.

The nephew claimed the 2005 and 2007 wills were invalid on various grounds, but the one that concerns us is that of capacity. He also made a claim that he was entitled to a constructive trust interest in the deceased’s main asset.

Mr Pearce appeared at the trial but was not represented. He (because of a failure to serve any witness statements or give disclosure) did not give evidence or call witnesses. He was allowed to cross examine the claimant’s witnesses and make submissions. The executor appeared by counsel and took a neutral position.

As to the deceased’s capacity, there was the written evidence of Professor Jacoby, an eminent old age psychiatrist, together with witnesses of fact as to her condition.

The result of the trial was that the judge (M Rosen QC sitting as a deputy judge of the Chancery Division) declared against the 2005 and 2007 wills and in favour of the 2003 will on the ground that the deceased lacked capacity to make those wills. He would also have found in favour of the claimant’s constructive trust claim, had that been necessary.

As to the test for capacity, he set out the Banks v Goodfellow common law test. He then considered whether, in relation to the 2007 wills, the capacity test in the MCA 2005 applied (this issue being dealt with, after the trial, by email correspondence with the judge).

At paragraph 90 Murray Rosen QC stated his view that “if left to his own devices” he would hold the Act applied to testamentary capacity at least by analogy. He then, however, at paragraph 91 (and 74) stated that incapacity may be established under section 1(2) of the Act if a real doubt is raised by the evidence from which it is possible to infer incapacity and the defendant does not rebut that inference in evidence.

In this case, the defendant had not been able to call any evidence and at paragraphs 82-84, the judge followed the pre Act cases that held that where a real doubt as to capacity of a testator is raised, the evidential burden to prove capacity shifts to the proponent of the will in question.

The question of the burden of proof was in the end academic as at paragraph 92 the judge held that that the evidence (essentially that the deceased had become delusional) would have satisfied him that the deceased lacked testamentary capacity even if the burden of proof had remained on the claimant throughout.


The precise effect of the MCA 2005 on the issue of testamentary capacity has yet authoritatively to be determined. There are two questions, one whether the Act’s test applies and the other whether the presumption of capacity in the Act means that the burden of proving incapacity remains on the person asserting it throughout. These questions were recently discussed in an article by Simon Edwards available here.

CategoryMental capacity - Finance Date


Sign up to our Mental Capacity Law Newsletter

If you would like to subscribe to our newsletters please click the link below.


Call +44 (0)20 7832 1111 for more information

Barrister portfolio


Click the + icon next to any barrister to add their profile to this portfolio.

Barrister Call CV Email