Wills and Probate - Recent Developments

In the increasingly complex world of the private client lawyer there are many challenges, both old and new. This month we will consider four of these potentially challenging areas and review what recent developments have occurred. 


The longstanding test to establish if someone has mental capacity to make a Will is set down in “Banks v Goodfellow 1870”. However, since the Mental Capacity Act (MCA) 2005 came into force there have been several (unsuccessful) cases challenging whether the MCA should replace the “Banks” case as the test for mental capacity. For the moment the “Banks” test remains the one the Courts will use and, in simple terms, establishes that a person must:

  1. Understand what a Will is;
  2. Be aware what they are leaving under a Will;
  3. Appreciate that family members (like children) might expect to inherit; and
  4. Not be suffering from a mental disorder which alters their decisions about what they put in their Will.

There is also a Court developed “golden rule” which provides the best way for a lawyer to help minimise or avoid disputes about capacity. The “rule” is actually only guidance and suggests that if there is doubt about someone’s capacity to make a Will then the document should either be approved or witnessed by a medical practitioner.

The testator, of course must agree to be medically assessed and may not agree that they are losing their capacity. They will also have to pay for a medical expert and even if an expert is found - in cases of serious illness - will they be able to do the assessment quickly enough? Finally, it is a bit of a concern that even Lord Templeman, the late law lord who invented the ‘golden rule’ on mental capacity was not able to rely on his own rule. His Will was challenged on grounds of capacity by his son in the case “Goss-Custard v Templeman” in 2020.

Farming disputes

Disputes over farms are a common source of claims. Cases can arise where, after years of hard work and low wages a family member claims that they were promised the farm and do not receive what is expected. These claims are based on a legal concept known as “promissory estoppel”. In 2018 there were 12 High Court cases on this issue. The latest Supreme Court decision in “Guest v Guest” was even brought while the parties were still alive! The case law in this area is still developing so no doubt there will be more to write on this issue soon.

Fraudulent calumny

This is not a new type of claim but one that is notoriously difficult to prove. In these types of disputes, it is normally claimed that someone has deliberately poisoned a testator’s mind to the extent that they write someone out of the Will. The poisoning is normally done by casting aspersions against someone’s character, but this has always been difficult to demonstrate. The “poisoning” usually happens behind closed doors with no one able to witness what has happened. The case of “Whittle v Whittle” in April 2022 was one of the few where a wronged client was able to show the testator was unduly influenced. In “Whittle”, the deceased’s daughter encouraged her frail, dying father to cut her brother and his wife out of the Will. The daughter said that her brother and his wife were ‘psychopaths and criminals’. She labelled her brother as a violent thief and his wife a prostitute. All the accusations were untrue. The Will was deemed invalid on the basis that the testator was unduly influenced by the daughter’s lies.

Elder abuse and predatory marriage

Our fourth and final area involves predatory marriages where the law currently provides few protections. In these cases, it is possible for a marriage to take place in secret without the knowledge of family members or friends. The marriage automatically revokes any previous Will and the predator potentially receives all of an estate under the intestacy rules.

A private member’s bill – the Marriage and Civil Partnership (Consent) Bill was first proposed in 2018 and has been mentioned again in 2021. The bill is designed to prevent predatory marriage and if made law might help ensure the safeguarding of potentially vulnerable elderly individuals.

Sadly, as money is involved, the possibility of disputes cannot be avoided. However, the law does try to reduce what can be argued about and a good legal practitioner will keep on top of these developments.

Author: Seamus Ryan

Seamus is ILSPA's course tutor, a CILEx examiner and a law coach. He has been teaching law for over 20 years with much passion and positive feedback from our Students.