The High Court has refused to strike out a claim seeking to propound a man’s will despite the Court of Protection having previously declared it invalid, on the grounds that the Court had not had jurisdiction to make that declaration.
The man had suffered a stroke in 2017, at the age of 78. The following year, he and his wife had moved out of their home and gone to live with their son. They had gone to stay with one of their daughters in June 2021 but the man had never returned to the son’s house, instead continuing to live with the daughter for the rest of his life. In July, he had made lasting powers of attorney (LPAs) in favour of the daughter and her two daughters, and in August he had made a will leaving his estate to the daughter or, if she predeceased him, to her three children equally.
The following year, the Office of the Public Guardian applied to the Court of Protection to set aside the LPAs. The couple’s other daughter also applied to the Court to have the LPAs ruled invalid, on the grounds of lack of capacity, and to revoke the 2021 will and reinstate a will the man had made in 2001 leaving his estate to his wife.
The Court found that the man had not had capacity to execute the LPAs. It held that his ‘so-called decision making’ had been precisely aligned with the daughter’s position and that this was not a coincidence: she had influenced him in a manner that should not have occurred. It also declared that he had lacked testamentary capacity in 2021 and the 2021 will was thus invalid.
The man passed away in 2024 and his wife in 2025. The daughter brought a claim before the High Court, seeking to propound the 2021 will. The son and the other daughter, as executors of the wife’s estate, applied to strike out the claim, or for summary judgment.
The High Court found that the Court of Protection had lacked jurisdiction to make declarations in respect of the man’s testamentary capacity in 2021 and the validity of the 2021 will for two reasons. Firstly, as the Court itself had acknowledged, it had no jurisdiction under Section 15 of the Mental Capacity Act 2005 to make declarations as to capacity in the past. Secondly, the man had still been alive at the date of the Court’s decision. The 2021 will had not yet taken effect and remained revocable. Issues as to its validity as an effective testamentary disposition had therefore not yet crystallised and when they did, they would be properly determinable in a probate claim, not in the Court of Protection.
Dismissing the application by the son and the other daughter, the High Court observed that that did not mean they would not ultimately be successful in defending the claim.
