James v James and others

Judge: HHJ Paul Matthews sitting as a Judge of the High Court

Citation: [2018] EWHC 43 (Ch)


In this case the court had to rule on the validity of a will where the capacity of the testator was in issue. The parties initially, in their skeleton arguments, agreed that the common law rule for the assessment of testamentary capacity when a will is contested applied namely that propounded by Cockburn CJ in Banks v Goodfellow (1870) LR 5 QB 549 at 565. (See paragraph 71 of the judgment).

In closing submissions, however, the claimant (who was contesting the will) argued that the test ought to be the same as that in s.3 MCA 2005. The court, therefore, had to decide the issue.

The court from paragraph 72 to 82 reviewed the first instance authorities noting that there were a number that had considered the point obiter and two that had made rulings on the point (both decisions of deputy High Court Judges).

The latter of the two was reached after full consideration of the former so the judge considered that he was bound by it in accordance with the rule of judicial precedent that holds that a court of co-ordinate jurisdiction should follow such a later decision in preference to the earlier one, see paragraph 83.

In addition, however, the court went on to hold that the later decision was right and that the common law test still prevailed, see paragraphs 84-87. The court then considered the facts and upheld the will.


Subject to the views of the Court of Appeal and Supreme Court, this issue must now be taken to be settled. In practice the difference may rarely result in a different result, although the judge did point out that the common law test is less stringent in some respects although the burden of proof at common law is on the propounder of the will whereas under the MCA the presumption of capacity applies throughout, see paragraph 77.

The difference could, in theory, lead to a ruling by the Court of Protection to the effect that, pursuant to the MCA test, P lacks capacity to make a will and authorising the making of a statutory will on P’s behalf with P, not impressed with that ruling, thereafter making a will that on his death is upheld on the common law test and revokes the statutory will.  The matter is currently being considered by the Law Commission, who have provisionally proposed replacing the common law test with the MCA test.

CategoryTestamentary capacity Date


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