Parfitt v Jones [2025] EWHC 1552 is a really interesting case, with some important lessons on the subject of retrospective Testamentary Capacity. For any professional working in this area, it is a must read.
Case summary
The case concerns Mrs Mary Wadge, a widow who passed away in 2018, at the age of 85, leaving a Will (dated 2008 and drawn up with Solicitors) naming one of her daughters, Carolyne, and HSCBC Trust Company UK Ltd as executors. The contents of the Will were challenged by one of her daughters (Vicky) and her son’s widow (Svetlana).
In the course of proceedings, Dr Simon Thompson was instructed to complete a Retrospective Testamentary Assessment for Mrs Wadge, in addition to several additional elements. Dr Thompson’s report was originally dated 22nd January 2025 and then further updated on 5th February 2025.
However, on weighing up Dr Thompson’s assessment, Judge Keyser raised a number of key concerns as to how the Retrospective Testamentary Assessment was conducted and written up.
The judged described the assessment as ‘inadequately reasoned and evidenced’. Key concerns included:
- Limits of the assessment as the named person could not be directly assessed.
- Errors in directions given to the witness.
- Lack of professional registration for the chosen witness.
- Documents considered exceeding the scope of relevant matters (reaching back to 1997, 11 years prior to the formation of the Will).
- Missed opportunities to consult wider documentation directly related to the matter.
- Poor relevancy of health conditions to the mental capacity assessment, for example, recording cancer, a heart condition and the role of a carer as influential matters.
- Not keeping to the question of the assessment; misusing a GP record stating the deceased had ‘confusion of dates’, and using this to argue the deceased did not have Testamentary capacity.
- Edits completed as the apparent result of input from Svetlana.
- Questionable response and use of the Mini Mental State Exam (MMSE) in point 80.
- Contents of the Mental Capacity report including utilising the wrong format of assessment, lacking professional justification for outcomes, leaning heavily on a presumed lack of incapacity due to health conditions (misapplying the five key principles of the Mental Capacity Act, 2005) etc.
In Judge Keyser’s closing comments, they write:
81. ‘In conclusion, I have had no difficulty in finding that Mary had testamentary capacity when she made the Will. It is, I fear, rather unsavoury and disrespectful to the dead to advance what I regard as a groundless case that a clearly capable testatrix lacked testamentary capacity.’
Testamentary Capacity in retrospect
In reflecting on this case, it is important to understand exactly what the assessor should have been seeking to answer in their retrospective assessment of Testamentary Capacity.
Drawing on the lessons of Banks v Goodfellow (1870), and the Mental Capacity Act (2005), the assessor should have sought to answer the following questions:
- Was the deceased able to understand the nature of the act of making the Will and its effect?
- Was the deceased able to understand the extent of the property of which she was disposing?
- Was the deceased able to comprehend and appreciate the claims to which she ought to give effect? (point 57)
However, in this case, these questions were clearly not the focus of the assessment – as evidenced by the many irregularities listed by the judge (see above).
Lessons for retrospective assessments
Retrospective assessments are always difficult to conduct to a high standard. However, this case does highlight some potential areas that assessors should be aware. These include:
- Referrals should include clear direction to ensure full transparency of the process, and that they are carried out within the scope of professional experience and skills.
- Expert Witnesses should be appropriately registered health professionals, maintaining their areas of practice and Continued Professional Development (CPD).
- All relevant documents should be considered, alongside consultations with key professional stakeholders. The assessment should recognise if there is further information that may affect the outcome, or that has not been available.
- The assessor should critically reflect on what is included or excluded from a written report, ensuring relevancy and justification in a concise coherent manner. They should also be aware of recent case law in the area.
For support with retrospective assessments, including training and consultancy, please contact us for a quote and case discussion.