Judge: Mark Herbert QC (Sitting as a deputy judge of the Chancery Division)
Citation:  EWHC 2867 (Ch)
Summary: We note this probate case for two reasons. The first relates to one of the grounds upon which it was alleged that the testator lacked the capacity to make a will. It was said by his sole next-of-kin that he was familiar with French law, and that an attempt by him to leave the whole of a property in France to a sibling (impossible under French law) was evidence of his incapacity at the material time. Mark Herbert QC, sitting as a Deputy High Court Judge, rejected this submission. He did so in part because he was not satisfied that there was convincing evidence that the testator either had or lacked the knowledge of the legal ramifications of leaving the property away from his heir. Of more general significance was the judge’s conclusion that “the requirement to prove testamentary capacity does not… extend to a requirement for knowledge of the comparative law of succession” (paragraph 58).
The second point of interest is that is – another – case in which the will in question was made after 1 October 2007 but the Court in considering whether the testator had the requisite capacity approached matters solely by reference to Banks v Goodfellow, rather than by reference to ss.2-3 MCA 2005. It does not appear that the Court was addressed on the extent to which the latter represents a reformulation of the former but this does provide an opportunity to note that Barbara Rich has reiterated her doubts about whether this is correct in the most recent issue of the Elder Law Journal  3 Eld LJ 258. This chimes with Alex’s doubts as to whether this is correct (see in this regard both his recent paper and the article he co-wrote with Annabel Lee in the same issue  3 Eld LJ 272).