Croll v Estate of Margaret Mary Thorpe Deceased & Ors

Summary

This decision of Master Clark, given in a probate claim with a “long-running and bitterly acrimonious history,” is an important reminder of two things: (1) the limits of the Court of Protection’s jurisdiction over wills that P has already made; and (2) the limited status of findings made by the Court of Protection in subsequent proceedings.

Mr Thorpe suffered a stroke in 2017. In 2021, he went to live with his daughter, the claimant, and subsequently granted LPAs for property and affairs and health and welfare in favour of the claimant and her two daughters. He also made a new will, leaving his estate to the claimant, or to her children if she predeceased him. His previous will left his estate to his wife, or equally to their three children.

In September 2021, at the claimant’s instigation, divorce proceedings were brought in Mr Thorpe’s name against Mrs Thorpe. A capacity assessment commissioned by his divorce solicitors in May 2022 recorded a MoCA score of 8/30 and concluded that he lacked capacity to conduct the proceedings.

Three applications were subsequently made to the Court of Protection:

• the OPG applied to set aside the LPAs;
• the claimant and one of her daughters applied to be appointed as deputies for property and affairs; and
• the second defendant, Jackie, applied for a declaration that the LPAs were invalid because Mr Thorpe lacked capacity to execute them, together with “the revocation of the 2021 will and the ‘reinstatement’ of the 2001 will.”

Mrs Thorpe was not a party to any of these applications.

The applications were heard over three days in November 2023 by HHJ Robin Tolson KC, alongside the divorce proceedings and an application for a non-molestation injunction. In his judgment dated 18 December 2023, the judge did not identify the validity of the 2021 will as an issue requiring determination. He found that Mr Thorpe lacked capacity to execute the LPAs and that the claimant had improperly influenced him. He also addressed the will at paragraph 51:

“I must mention the position of [Mr Thorpe]’s will. The will cannot stand. No medical professional assessed [Mr Thorpe] at the time but a lucid moment for [Mr Thorpe] seems impossible on this evidence.”

HHJ Robin Tolson KC indicated that the 2001 will might need updating, and that a statutory will might therefore need to be made. His order of 19 December 2023, however, went further, both reciting that the 2021 will was invalid and providing:

IT IS DECLARED PURSUANT TO SECTION 15 OF THE MENTAL CAPACITY ACT 2005:

…

6. That [Mr Thorpe] lacked testamentary capacity to execute a Will in 2021
7. That the Will executed in 2021 is invalid.

On 11 January 2024, the Official Solicitor declined the court’s invitation to act as Mr Thorpe’s litigation friend. She raised a concern that s.15 appeared to permit the Court of Protection to make declarations only about a person’s present capacity. She also drew attention to the statement in Re M (Statutory Will) [2009] EWHC 2525 (Fam) that “the Court of Protection has no jurisdiction to rule on the validity or invalidity of any will.”

In an email on 15 January 2024, the judge acknowledged the point. He said that “the most appropriate course is now to remove that recital”. The order was not, however, amended. In October 2025, the judge declined to amend it, on the basis that he was functus officio.

Mr Thorpe died on 7 February 2024, before any steps had been taken towards a statutory will. Mrs Thorpe died in May 2025. The claimant then brought a claim to propound the 2021 will.

The first defendant was Mrs Thorpe’s estate (as the beneficiary under the 2001 will), which Jackie and her brother Peter were appointed to represent. The defendants challenged the 2021 will on the grounds of lack of testamentary capacity, want of knowledge and approval, undue influence and fraudulent calumny. They applied to strike out the claim, or for summary judgment, on the basis that it was inconsistent with the Court of Protection’s final judgment and order. All parties were acting in person.

Master Clark dismissed the application in this case. She began from the principle that estoppels only bind the parties to the earlier proceedings and their privies:

33. However, these principles only apply where the parties to the subsequent proceedings were parties to the earlier proceedings. Judgments are only conclusive as to the issues decided as between the parties and their privies (persons treated as having the same legal interest).

As to the Court of Protection’s jurisdiction, having set out s.15 MCA 2005, she held:

38. The wording of the section clearly, in my judgment, limits the scope of the declarations pursuant to it to the relevant person’s capacity at the date of the declaration. It does not extend to declarations as to past capacity. The decision referred to in the Official Solicitor’s letter dated 11 January 2024 – Re M (Statutory Will) [2009] EWHC 2525 (Fam), [2011] 1 W.L.R. 344 – records at [44(i)] the judge’s endorsement that the Court of Protection has no jurisdiction to rule on the validity or invalidity of any will. […] His endorsement, although not strictly necessary for the purpose of deciding the case before him, is to be treated as highly persuasive. In any event, the claimant has a real prospect of success in showing that the COP’s jurisdiction is limited in this way.

Having noted that a will is ambulatory and has no effect until the testator’s death, she concluded:

40. In my judgment, the COP judge’s decision cannot give rise to an issue estoppel binding Mrs Thorpe’s estate.
41. Mrs Thorpe was not a party to the COP applications. The factual findings of the COP judge in relation to those applications do not therefore bind the claimant in a claim as against Mrs Thorpe, or the defendants, who stand in her shoes in their representative capacity as her executors; nor are they admissible as evidence in this claim.
42. In any event, in making declarations in his order in respect of Mr Thorpe’s testamentary capacity in 2021 and the validity of the 2021 will, the judge, in my judgment, lacked jurisdiction to do so for two reasons. First, (as the judge himself acknowledged) he had no jurisdiction under section 15 of the 2005 Act to make declarations as to capacity in the past. Secondly, and additionally, at the date of his decision, Mr Thorpe was still alive. The 2021 will had not yet taken effect and remained revocable. Issues as to the validity of the will as an effective testamentary disposition had therefore not yet crystallised; and, when they did, would be properly determinable in a probate claim, not in the COP. Whilst this lack of jurisdiction may not affect the position as between the parties to the COP proceedings, it is at least arguable with a real prospect of success that it prevents an issue estoppel from arising.

The same applied to the judge’s findings in the divorce proceedings, to which the claimant had not been a party. The defendants’ application was therefore dismissed. Master Clark was careful to add, though, that this “does not mean that they will not ultimately be successful in defending the claim,” and that Williams J’s comments were “a strong indication of the likely outcome of this claim” (paragraph 44).

Comment

Although it appears to have caused considerable stir, the decision contains nothing that should surprise those familiar with the Court of Protection’s statutory will jurisdiction, but it is a useful reminder of the limits of that jurisdiction. Two points about Master Clark’s first reason are worth drawing out.

1. First, the present-tense reading of s.15(1)(a) and (b) (“has or lacks capacity”) is consistent with the statutory language. Section 15(1)(c) looks backwards (“any act done, or yet to be done”), but it concerns acts done in relation to P, not P’s own past acts. Where Parliament wanted the Court of Protection to look back at P’s capacity at a particular moment, it said so: s.22 empowers the court to determine whether the requirements for the creation of an LPA were met. That is why HHJ Tolson KC’s findings about Mr Thorpe’s capacity to execute the LPAs were, and remained, squarely within jurisdiction. There is no equivalent provision for wills.
2. Second, the decision underlines, perhaps uncomfortably for some families, that findings of fact made by the Court of Protection do not bind those who were not parties, and are not even admissible as evidence against them in later civil proceedings. That is simply the ordinary rule set out in Phipson at 43-77, but it may come as a surprise to those who assume that a hard-fought Court of Protection hearing has settled matters “for good”. The evidence underlying the findings can, of course, be deployed afresh. Given Williams J’s observations, one suspects that the defendants may yet succeed at trial. It should also be remembered that this was a summary application.

Master Clark was not referred to VAC v JAD & Ors [2010] EWHC 2159 (Ch) (also reported as Re D (Statutory Will)), a decision of HHJ Hodge QC sitting in the Court of Protection. That case, however, provides useful context for Croll, and illustrates what the Court of Protection could have done differently.

In VAC, Mrs D had made a number of wills, the validity of the two most recent of which was seriously disputed. Her daughter applied for a statutory will.

HHJ Hodge QC held that the Court of Protection should not itself determine whether the disputed wills were valid. It could, however, take the doubts about those wills into account when deciding whether a statutory will was in Mrs D’s best interests. In particular, an earlier will could be relevant to the wishes and feelings evidence under s.4(6)(a) MCA 2005, although no weight should be given to a will shown to have been made when P lacked capacity. The court therefore declined to rule on the validity of the later wills but, because there were serious doubts about them, authorised a statutory will which essentially reproduced the terms of the earlier 1995 will.

VAC and Croll therefore fit together in three important respects.

1. Both decisions recognise that the Court of Protection does not determine the validity of an existing will;
2. This does not mean that the Court of Protection must ignore concerns about an existing will. VACshows that those concerns may be relevant when the court is deciding whether to authorise a statutory will. The distinction is between considering the existing will in order to decide a question within the Court of Protection’s jurisdiction and making a declaration that the will is invalid.
3. VACillustrates the route by which the Court of Protection could have addressed the underlying problem. It could not revoke the 2021 will or reinstate the 2001 will. It could, however, authorise a statutory will which revoked the earlier wills and, if appropriate, reproduced the terms of the 2001 will.

The practical point is therefore relatively simple. If serious doubts about P’s existing will arise while P is alive, the Court of Protection should not seek to determine whether the will is valid. Instead, the court should consider whether a statutory will application is appropriate. That application should involve the appropriate parties (see Practice Direction 9F) and, particularly where P is seriously ill or elderly, be dealt with promptly. Otherwise, questions about the existing will will ultimately have to be determined by the probate court after P’s death.