Challenging a Will in Probate on Grounds of Mental Capacity (Dementia)

In the recent case of Catling v. Catling, Mrs Catling’s 2007 will was declared invalid because she did have the requisite mental capacity when she made it. The Court ruled that Mrs Catling’s 2007 will was a ‘radical departure’ from her earlier wills and she did not have the necessary mental capacity to understand the radical changes. 

Facts: Formation & Execution of the Will

Mrs Catling was 82 when she died and had suffered from dementia for some years. On 23rd August 2004, Mrs Catling made a Will prepared by her solicitors. This Will gave an sum equal to the nil-rate band to her children and the residue to the surviving spouse. If the spouse did not survive, the residue estate was to divided equally among all 8 children. 

In 2007, Mrs Catling made another Will leaving everything to her youngest son, Kevin. Much was made of the fact that the person who was drawing up the 2007 Will  (a paid professional but not a qualified solicitor) had not followed the so called “golden-rule” and asked a medical practitioner to act as a witness to the Will. Moreover, the validity of the Will was challenged on the basis that Mrs Catling did not have the relevant mental capacity to understand the changes made. 

Mental Capacity For Making A Valid Will: Banks v. Goodfellow (1870)

The question of whether a testator has the mental capacity to make a will is imperative when assessing the validity of the will. It involves the testator being able to make and understand the provisions in the will. The Court needs to be satisfied that the testator had a “ sound and disposing mind and memory.”

The leading authority in this matter is Banks v Goodfellow (1870) which states that the testator must be able  (1) to understand the nature of his act (i.e. making a will, and its effects) (2) to understand the extent of the property of which the testator is disposing (3) to comprehend and appreciate the claims to which the testator ought to give effect and the testator must not be subject to any disorder of mind as shall poison his affections, pervert his sense of right, or prevent the exercise of his/her natural faculties.

Court’s Decision:

The Court held that Mrs Catling’s 2007 Will was invalid because she lacked the mental capacity to understand the changes. The court was heavy influenced by medical evidence which demonstrated that beyond reasonable doubt Mrs Catling developed dementia in the last years of her life and by late 2005 her cognitive impairment was fully established. As a result, Mrs Catling’s 2007 Will was a radical departure from her earlier Wills.

At paragraph 68 of the Judgment Mr David Halpern QC (sitting as a Judge in the Chancery Division) stated:

“I am satisfied on the basis of Professor Jacoby’s second report that she did not have the limited capacity needed in May 2007, even if she had capacity in December 2005 or January 2006. I am strengthened in this conclusion by the radical departure of the 2007 Will from her earlier Wills.”


The court’s decision demonstrates the importance of having the relevant mental capacity when making a will. It is evident that the court was heavily influenced by the doctor’s report which proved that the testator lacked the relevant mental capacity and therefore the 2007 Will was declared invalid.