High Court Upholds Testamentary Capacity in the Case of Parfitt v Jones [2025] EWHC 1552 (Ch)

This article offers an analysis of the legal and practical requirements for testamentary capacity. In Parfitt v Jones [2025] EWHC 1552 (Ch), the High Court applied the established Banks v Goodfellow criteria, examining the testator’s understanding of the act of will making, the extent of their assets, and the familial claims they ought to consider. Against a backdrop of later cognitive decline, the court relied principally on contemporaneous evidence to uphold the validity of the will. This examination emphasises how capacity is assessed at the time of execution, and reinforces the evidential threshold necessary to support or challenge wills in disputes over mental competence.

Factual Background and Medical History

Mary Barbara Wadge (“Mary”) was an 85-year-old widow at the time of her death on 8 September 2018. Ten years earlier, in November 2008, she had made a will leaving the bulk of her estate to her daughter, Carolyne, a smaller share to her son, James, and nothing to her other daughter, Vicky. This unequal distribution, effectively excluding Vicky, led to a family dispute after Mary’s death.Vicky (along with James’s estate, represented by his widow) challenged the 2008 will on several grounds, principally alleging that Mary lacked testamentary capacity when the will was executed. Carolyne, the proponent of the will, maintained that her mother fully understood and approved the will and had the mental capacity to make it.

Mary’s mental health and cognitive history were central to the case. She had experienced some memory lapses as early as 2006; for example, a general practice nurse noted Mary was “slightly confused” about the dates of medical appointments in August 2006. The High Court found this to be an isolated incident of minor confusion, not evidence of any serious cognitive impairment. Importantly, no diagnosis of dementia or significant mental deterioration was made at that time. In fact, Mary continued to manage her affairs in the ensuing years and even acted as the primary carer for her second husband, Ron, when he himself was diagnosed with dementia in 2008. As the judge observed, it is telling that Mary was entrusted with Ron’s care; it was noted that “Carolyne observes, with some merit, that Mary would have been unlikely to become Ron’s principal carer if the referral in 2006 had resulted in any diagnosis of significant mental deterioration on her part.” This context strongly suggested that Mary was still functioning independently and competently around the time she gave instructions for her own will in late 2008. Indeed, on 4 October 2008, Mary personally attended a meeting at an HSBC branch to give instructions for her will (the will was drafted by solicitors via an HSBC service), and there were no reports of any confusion or inability to understand during that meeting. Carolyne was present with her, but the court rejected claims that Carolyne dominated or controlled the process. The evidence indicated that Mary was capable of making her own decisions at that time.

It was only some years after the will’s execution that signs of dementia emerged. In early 2011, Mary underwent cognitive screening which suggested mild impairment: for example, a “6-CIT” cognition test on 7 January 2011 indicated some memory deficits consistent with mild cognitive impairment. Later that year, on 18 July 2011, Mary scored 19/30 on a Mini-Mental State Examination (MMSE), showing moderate cognitive impairment by that date. Medical letters by December 2011 recorded obvious memory problems, including difficulty recalling recent events. Mary was formally diagnosed with dementia in July 2011, roughly two and a half years after making the will. Her health continued to decline thereafter, with hospital records in April 2012 noting episodes of confusion following a fall. In summary, the evidence showed that Mary’s cognitive decline became manifest and was clinically diagnosed several years after the 2008 will. While she did have some memory issues in the mid 2000s, no contemporaneous evidence suggested that, in late 2008, her understanding or decision making was impaired to a degree that would call into question her capacity to make a valid will. On the contrary, the records and testimony indicated that Mary remained mentally capable during the will-making period, and only later did her memory and cognition significantly deteriorate.

Legal Test for Testamentary Capacity

The High Court judge (His Honour Judge Keyser KC) applied the classic common-law test for testamentary capacity set out in Banks v Goodfellow (1870) LR 5 QB 549. Under this well-established test, a testator (will-maker) has capacity if, at the time of giving instructions for and executing the will, they can:

• Understand the nature of the act of making a will and its effects (i.e. that they are disposing of their assets to take effect on death).
• Understand the extent of the property of which they are disposing (in broad terms, knowing the general size and nature of their estate).
• Comprehend and appreciate the claims to which they ought to give effect, meaning they can recognise the people who might have a reasonable expectation of benefit and weigh those claims when deciding their dispositions.
• Not be affected by any disorder of the mind or delusion that poisons their affections or perverts their sense of right, such that it influences the will’s terms in a way they would not have decided if thinking soundly.

These criteria from Banks v Goodfellow remain the definitive legal standard for testamentary capacity in English law. Crucially, this is a legal test, not a purely medical diagnosis: the question is whether the testator was capable of the necessary understanding, not whether they had a particular medical label. A degree of memory loss or mild cognitive impairment does not preclude testamentary capacity so long as the Banks v Goodfellow criteria are met. In the present case, the court noted that memory problems are only relevant if they deprive the testatrix of the ability to understand what she is doing; there is no requirement of perfect memory for a valid will. As the judge put it, Banks v Goodfellow “does not lay down a memory test” but rather an understanding test.

The burden of proof in such cases follows the framework reaffirmed by the Court of Appeal in Hughes v Pritchard [2022] EWCA Civ 386. There is a rebuttable presumption of capacity: if a will is duly executed and appears rational on its face, the law initially presumes the testator had capacity. The party challenging the will must produce real evidence of incapacity to displace that presumption. If a real doubt is raised, the evidential burden shifts back to the will’s propounder (here, Carolyne) to prove on the balance of probabilities that the testator did have capacity. In Hughes v Pritchard, the Court of Appeal emphasised that judges must focus on the Banks v Goodfellow criteria and not impose higher hurdles than required. For instance, a testator need not have flawless recall of a prior will or every detail of their estate, so long as they can understand what they are doing at the time and are capable of being reminded of relevant information. As Asplin LJ observed in Hughes, “It is also common ground that the burden of proof in relation to testamentary capacity is on the person propounding the will. Where the will is duly executed and appears rational on its face, the court will presume capacity, in which case, the evidential burden shifts to the objector to raise a real doubt as to capacity. If a real doubt is raised, the burden shifts back to the person propounding the will to establish capacity, nonetheless: Key v Key [2010] EWHC 408 (Ch) per Briggs J (as he then was) at [97]. Further, despite the fact that expert evidence may be of great assistance, the issue as to testamentary capacity is a decision for the court: Key v Key at [98].” In that case, the Court of Appeal overturned a first instance decision that had placed undue weight on the testator’s inability to spontaneously recall the contents of an earlier will, clarifying that failing to remember something unprompted is not the same as lacking capacity, provided the person can comprehend it when explained.

Another practical safeguard in will-making is the so-called “Golden Rule” from Kenward v Adams (1975), which advises that for an elderly or seriously ill testator, a doctor should witness the will or otherwise confirm the testator’s capacity at the time. The Golden Rule is a recommended best practice to help prevent disputes, but it is not a binding legal requirement. In Mary’s case, her will was prepared through a bank’s service rather than directly by a solicitor, and no medical practitioner was involved in the will writing process. The court noted, however, that a failure to follow the Golden Rule does not itself invalidate a will or prove lack of capacity. What matters is the actual mental capacity of the testatrix, not whether a doctor was present. Even without a contemporaneous medical certificate, a will can be upheld if the evidence shows the testatrix understood what she was doing. HHJ Keyser KC was satisfied that the circumstances of Mary’s 2008 will raised no “golden rule” alarm that was ignored; Mary was 75 years old and had some memory issues, but there was no indication at the time that she lacked understanding of her actions, so the absence of a doctor’s assessment in 2008 was not treated as suspicious in itself.

In summary, the court approached the question of Mary’s capacity by applying the Banks v Goodfellow test, mindful of the guidance in Hughes v Pritchard about the presumption of capacity and the proper emphasis on the ability to understand rather than perfect memory. With these legal principles in mind, the judge turned to evaluate the evidence of Mary’s mental state in 2008.

The Judge’s Reasoning and Conclusion on Capacity

After hearing three days of evidence, the High Court concluded that Mary Wadge did have testamentary capacity in relation to her November 2008 will. In reaching this decision, HHJ Keyser KC undertook a detailed analysis of the expert testimony, contemporaneous records, and witness evidence:

Expert Evidence: The parties had jointly instructed Dr Simon Thompson, an associate professor of neuropsychology, to provide an expert opinion on Mary’s capacity in hindsight. Dr Thompson opined that Mary lacked testamentary capacity in 2008, reasoning that her documented memory impairments at the time (and her subsequent dementia diagnosis in 2011) indicated she was unable to make considered decisions or remember them. However, the judge ultimately gave little weight to this expert’s opinion, finding that it was fundamentally flawed. Several criticisms were made of Dr Thompson’s evidence:

• Lack of clinical experience: Although highly qualified academically, Dr Thompson was not a medical doctor or a treating clinician, and he had no direct practical experience assessing or treating patients with dementia. The court viewed this absence of hands on clinical background as a factor that “lessened the weight” of his opinion on Mary’s functional capacity.
• No direct examination of Mary: Dr Thompson never met or examined Mary, so his assessment was entirely retrospective. This necessarily limited the confidence the court could have in his conclusions, as he had no personal observation of Mary’s mental state to inform his opinion.
• Incomplete information: The expert’s analysis was based on medical records and general assertions, but notably he had not been provided with the first hand witness statements of those who actually knew and interacted with Mary in 2008. The judge found this omission significant: given that Dr Thompson lacked a direct evaluation of Mary, testimony from friends, family, or professionals who saw her at the time would have been invaluable, yet he did not consider that evidence.
• Inadequate reasoning: The court found Dr Thompson’s ultimate conclusion, that Mary did not have the mental ability “to make decisions or to remember important decisions made by her during 2008”, to be poorly reasoned and unsupported by specific evidence. In his reports, the expert did not identify exactly which decisions he believed Mary was incapable of making or why. As the judge pointed out, even an elderly person with mild dementia may still be able to make many decisions; indeed, “a degree of memory impairment is capable of being consistent with testamentary capacity”. Dr Thompson failed to bridge the gap between Mary’s memory issues and an inability to understand the making of a will. His analysis, according to the judge, “was inadequately reasoned and evidenced”, and seemed to rely on generalisations about dementia rather than the concrete facts of Mary’s case.

In light of these issues, the judge was not persuaded by the expert’s assertion that Mary lacked capacity. When asked whether generally most but not all people with mild dementia will retain capacity to make a will, Dr Thompson replied: “No, it is very much on an individual basis. Dementia is complex.” Ultimately, the court remarked that “an ounce of reasoning is worth a pound of opinion” and concluded that the analysis offered a speculative conclusion that could not overcome the contrary indicators from other evidence.

Contemporaneous Medical and Documentary Evidence: The judge placed far greater weight on contemporaneous records from the relevant time period (2006–2009) than on the retrospective expert opinion. Those records painted a picture of a woman who, despite some memory issues, was managing her life competently around 2008. Crucially, there was no evidence of any episode of confusion or inability to understand either on 4 October 2008 when Mary gave her will instructions, or on 19 November 2008 when the will was executed. The will was drafted by solicitors based on Mary’s instructions, and it was duly signed in accordance with legal formalities. Had Mary been visibly impaired or unable to comprehend what she was doing at that time, it likely would have been noted or raised by those present. Instead, the process appeared routine.

The court examined Mary’s GP and hospital records in detail. An isolated note of confusion in 2006 was considered too minor and context specific to suggest any lasting incapacity. Moreover, medical notes from 2007–2008 did not record any diagnosis of cognitive impairment or any concerns about Mary’s mental state during that period. In fact, one significant document from July 2008 showed Mary being proactive about her and her husband’s healthcare: she signed a letter authorising her GP to discuss their medical information with Carolyne, stating that “Carolyne is very concerned regarding the health of each of us.” Far from indicating mental incompetence, this letter suggested Mary’s awareness and involvement in managing her affairs, as she formally facilitated communication with her doctors. Although the defendants tried to portray this as evidence of Carolyne’s overreach, the judge found nothing sinister in it, seeing it as a sensible step by an ageing parent to keep an involved child informed.

The subsequent medical evidence (2011–2012) was also considered, but the court treated it with caution due to the time gap. Cognitive assessments in 2011 confirmed that Mary’s mental faculties were in decline by then (for example, her MMSE score of 19/30 in mid-2011 and doctors noting obvious memory deficits later that year). However, the judge emphasised that these developments occurred years after the will was made. Deterioration in 2011 did not prove incapacity in 2008; at most, it showed that Mary’s dementia was likely in an early, mild stage around the will’s date. The relevant legal question was whether at the time of the will Mary still understood what she was doing. On that question, the documentary record was either neutral or affirmatively supported her capacity. For instance, one piece of evidence highlighted by the judge was that on 18 July 2011 Mary saw a solicitor to discuss her Will and the registration of the severance of the joint tenancy, and the solicitor had no concerns about her mental capacity at that meeting. Even though by that same day Dr Linton’s testing showed cognitive decline, Mary was evidently still able to hold a reasonable conversation about her affairs.

Summarising the medical evidence, the judge concluded that nothing in the records contemporaneous with the will execution raised a real doubt about Mary’s understanding. In the judge’s words, “none of these pieces of evidence tend to cast doubt on Mary’s capacity to make a will in October/November 2008”. On the contrary, absent any sign of confusion during the will-making, the factual narrative suggested she “had the necessary testamentary capacity” at the material time.

Witness Testimony and Family Evidence: The court also evaluated the testimonies of family members and others who knew Mary. Carolyne gave evidence supporting her mother’s lucidity and independence in 2008, describing the will as Mary’s own idea in response to family circumstances. On the other side, Vicky (the disinherited daughter) and James’s widow Svetlana painted a picture of Mary as a vulnerable elderly woman under Carolyne’s control. They suggested that Carolyne orchestrated the will in her favour, implying that Mary either didn’t fully understand it or wouldn’t have made such a decision without undue influence.

HHJ Keyser KC approached this conflicting testimony with care. He noted that much of the defendants’ interpretation was coloured by mistrust and a lack of full insight into Mary’s relationship with Carolyne. In fact, the evidence showed that Carolyne had been the sibling most involved in helping Mary (with finances, appointments, daily needs) simply because Carolyne lived closer and was willing to assist, especially as Mary coped with Ron’s illness. The judge remarked that Carolyne’s involvement could “properly be seen as filial service”, the normal care a devoted daughter provides, rather than domination. There was no evidence that Mary’s own wishes were overborne. For example, Mary’s longstanding estrangement from Vicky was documented well before 2008 (they had minimal contact aside from brief encounters involving grandchildren). Mary’s critical view of Vicky pre-dated any cognitive decline, which suggests a rational explanation for excluding Vicky from the will: it was a conscious choice rooted in a strained relationship, not the product of confusion or someone else’s coercion. The judge accepted that Mary was fully aware of what she was doing in choosing to benefit Carolyne (who was caring for her) and to leave nothing to Vicky (with whom relations were poor). He found that the will’s terms reflected Mary’s own settled intentions, even if they were harsh towards one child.

Furthermore, the will was not entirely unexpected; Mary did include her son James to some extent, which indicated she had thought about the “claims” of her children and made a deliberate judgment. The court observed that Mary was “positively scrupulous in identifying those who might reasonably expect to be provided for” and deciding how (or whether) to benefit them. In other words, she engaged with the moral claims of her family, as required by the third limb of Banks v Goodfellow. She ultimately decided to exclude Vicky and favour Carolyne, which the judge deemed a reasoned decision consistent with her knowledge of her children’s respective contributions and needs, not a sign of mental incoherence.

After considering all the above, the judge reached a conclusion: Mary Wadge had testamentary capacity in 2008, and the will is valid. He found that Mary understood the nature and effect of making her will, knew the extent of her property, and weighed the claims of her family members, arriving at a decision that, while controversial within the family, was rational given the circumstances. There was no persuasive evidence of any mental disorder or insane delusion influencing her decision. On the contrary, the will was seen as the product of a “clearly capable testatrix” acting freely.

In his judgment, HHJ Keyser KC was forthright about the weakness of the capacity challenge. He expressed disapproval that the case had been pursued on such tenuous grounds, stating that it was “rather unsavoury and disrespectful to the dead to advance what I regard as a groundless case that a clearly capable testatrix lacked testamentary capacity.” This strong remark at paragraph 81 of the judgment underlines how convincingly the evidence showed Mary’s capacity. In the final result, all grounds of challenge were dismissed. The court pronounced in favour of the 2008 will, meaning Mary’s last wishes as set out in that will must be given effect.

For legal practitioners and clients, the case serves as a reaffirmation of the high threshold needed to prove lack of testamentary capacity. Even in a scenario where the testatrix later fell ill with dementia, the court upheld the will because the contemporaneous evidence showed she met the Banks v Goodfellow criteria at the relevant time. The case highlights the importance of strong, reasoned evidence when alleging incapacity. Bare assertions or retrospective speculation, especially in the face of a seemingly rational will and a plausible explanation for its provisions, will not suffice to overturn a duly executed will. The judgment also illustrates the court’s preference for concrete facts (medical records, witness observations, the will’s content) over theoretical expert opinions when determining a testator’s capacity. Ultimately, Mary Wadge’s will was upheld because, on the balance of the evidence, she knew exactly what she was doing in 2008, and the law will honour that decision.