Contentious trusts and probate solicitor Lucy Scurfield examines the legal authorities for modern testamentary capacity disputes and finds a hierarchy based on contemporaneity, reliability and relevance.
Modern testamentary capacity disputes are often framed as a contest between legal and medical evidence. The authorities demonstrate that this is the wrong question. The court is concerned with the reliability of the evidence and its ability to illuminate the testator’s functional decision-making at the relevant time.
In Hughes v Pritchard [2022] EWCA Civ 386, the Court of Appeal reaffirmed the importance of contemporaneous evidence. The will had been prepared by an experienced solicitor who met the testator, considered capacity and recorded detailed reasons for her conclusions. A contemporaneous GP assessment also supported capacity. The trial judge nevertheless preferred later medical reservations and found incapacity.
Critical error
The Court of Appeal overturned that decision. It emphasised that testamentary capacity remains a legal question informed by, but not determined by, medical opinion. The critical error was preferring retrospective views over direct observations made at the time of execution. Where an experienced will draftsman has properly assessed capacity and recorded their reasoning, that evidence will ordinarily carry substantial weight.
The preference for contemporaneous evidence reflects a broader evidential hierarchy. A solicitor or clinician assessing a testator at the time engages directly with the functional requirements of Banks v Goodfellow. Retrospective evidence is necessarily inferential, requiring reconstruction from records, witness evidence and other material. Its value depends on the quality of those underlying sources.
Primary evidence
This explains why courts are cautious about retrospective expert opinion, particularly where the expert never met the testator. Such evidence can be highly persuasive if grounded in detailed and proximate records, but it remains an interpretation of primary material rather than primary evidence itself.
The question for the court is therefore not whether evidence is medical or legal, but how closely it engages with the testator’s functional ability at the material time and how directly it is rooted in primary evidence.
That principle was developed further in Leonard v Leonard [2024] EWHC 321 (Ch). The testator suffered from dementia, there was little contemporaneous evidence of a meaningful capacity assessment, and two medical experts were unable to reach a definitive conclusion. Mrs Justice Joanna Smith emphasised that expert evidence is not determinative. Its strength depends entirely upon the material on which it is based.
Bridging the gap
Leonard therefore bridges the gap between Hughes and later authorities. It demonstrates both the potential importance of expert evidence and its inherent limitations. The expert does not create evidence; they interpret it. The strength of their opinion depends entirely on the quality, proximity and relevance of the underlying material.
The same approach can be seen in later cases such as Maile v Maile and Scott v Scott. In Maile, strong contemporaneous solicitor evidence proved decisive. In Scott, the court preferred the evidence of a clinician who had assessed the testator contemporaneously. In both cases, the outcome turned not on whether the evidence was legal or medical, but on which evidence most reliably illuminated the testator’s functional capacity at the time the will was made.
The modern authorities therefore establish a hierarchy based on contemporaneity, reliability and relevance. The decisive question is always which evidence provides the clearest window into the testator’s ability to satisfy the Banks v Goodfellow criteria when the will was executed.
About the author
Lucy Scurfield is a solicitor in the Contentious Trusts and Probate Team at Forbes, advising on a broad range of disputes including Inheritance Act claims, validity challenges, and trust matters. She brings extensive litigation experience from her work on complex, high-value claims and was recognised as a Recommended Lawyer in Legal 500 (2023).
