[2010] EWHC 1575 (Ch); Jules Sher QC, sitting as a deputy judge of the High Court; 28th June 2010
After the Deceased died two codicils to her will were put forward but their validity was disputed. In contentious probate proceedings, they were held to be invalid. There was expert evidence that the signatures on both codicils were forged.
In the course of his judgment, the judge made the assertion (now made by several judges) that the tests of capacity in Banks v Goodfellow have not been displaced, in respect of testamentary documents, by the provisions of the Mental Capacity Act 2005.
There is an interesting discussion about expert evidence and incapacity, describing the slightly different approaches of the two experts, Professor Howard and Professor Jacoby, to the problem. There is also a detailed discussion, no less interesting, about the evidence of the handwriting experts and and its application.
The judge went on to say that, even if he was wrong about forgery, and the deceased had signed the documents, the evidence showed that the signatures were made long after the dates on the documents and, at that time, the deceased did not have capacity to execute a testamentary document.