Q&A using Scott v Scott [2025]
This article looks at how courts deal with a testamentary capacity will challenge, using the recent High Court case Scott v Scott [2025] as a guide. It explains how judges assess whether a person making a will truly understood what they were doing, and what kind of medical and legal evidence matters most.
Important note on medical detail
The clinical and neuropsychological aspects below are simplified and generalised for readability. The Scott v Scott judgment contains fuller medical and procedural analysis (including timing, scope, and limitations of capacity assessments, and the specific language and executive-function deficits considered). The outline here uses plain language and high-level summaries only.
Q: How the court deals with applications to set aside a Will for lack of testamentary capacity?
A: Scott v Scott and others [2025] EWHC 2796 (Ch), a High Court decision from October 2025. It concerned late-life Wills made by a Cheshire farmer with a substantial estate and a large, complex family. One son sought to set aside two 2016 Wills on the basis of lack of testamentary capacity and lack of knowledge and approval. The court upheld the Wills, providing a clear and current illustration of how capacity challenges are assessed.
Q: What was the central capacity issue?
A: Whether the testator, diagnosed with frontotemporal dementia and severe speech impairment (progressive non-fluent aphasia), nonetheless had testamentary capacity when he executed wills in September and December 2016. The focus was on whether he could understand the will-making act and its effects, the broad extent of his property, and the claims of potential beneficiaries, and whether any disorder of mind overbore rational decision-making.
Q: Which legal test did the court apply?
A: The Banks v Goodfellow test, applied in a transaction-specific way:
- Understands the nature and effect of making a will.
- Understands, in broad terms, the extent of the property.
- Can comprehend and appreciate the claims of those who might expect to benefit.
- Is not subject to a disorder of mind that poisons the affections or prevents a rational disposition.
The court followed modern guidance (e.g., Hughes v Pritchard; Leonard v Leonard) that capacity is judged in the context of the particular testamentary decision and its complexity.
Q: Who carries the burden of proof where capacity is in doubt?
A: If real doubt is raised (for example, by evidence of dementia), the burden lies on the party propounding the will to prove capacity at the time of execution.
Q: What evidence did the court find most persuasive?
A: Proximate, contemporaneous, and first-hand materials:
- A near-contemporaneous clinical assessment by a specialist who examined the testator close to the will dates.
- Detailed attendance notes from the will-drafter recording instructions, a clause-by-clause read-through at execution, and how understanding was checked.
- Evidence of functional communication: despite limited speech, the testator used gestures, writing, and marked drafts to demonstrate understanding and make choices.
The court gave “due weight” to careful professional process and documentation. Absence of a doctor witnessing the will (the “golden rule”) is not fatal where the process is otherwise robust.
Q: How did the court approach severe speech impairment and dementia?
A: The court distinguished expressive from receptive language. The inability to speak fluently did not equate to an inability to understand. What mattered was whether the testator could understand the information relevant to the decision and communicate a choice—by any reliable means. The court accepted that multimodal communication (nodding, writing, pointing) can be sufficient where properly recorded.
Q: What about the “poisoned affections” limb of the test?
A: Excluding a child, without more, does not demonstrate a disorder of mind. The court looked for evidence of delusions or affective disturbance driving the terms. Longstanding family dynamics and personality traits, even if unkind, did not satisfy limb (iv) on the facts.
Q: Did the court consider knowledge and approval separately from capacity?
A: Yes. On a holistic evaluation, the court was satisfied the testator knew and approved the contents: the will was read through, corrections were made, and drafting choices (including references to assets held via nominees) were explicable. The process and notes were decisive.
Q: What practical principles emerge for future disputes?
A:
- Capacity is decision-specific: apply Banks v Goodfellow to the particular will and its complexity.
- First-hand, proximate evidence carries the most weight: contemporaneous medical assessment and thorough will-drafter notes often decide the case.
- Functional communication counts: courts accept reliable alternatives to speech if understanding and choice are demonstrated and recorded.
- Professional process matters: careful attendance notes, a clause-by-clause read-through, and proportionate medical input are powerful.
- “Unfair” is not “invalid”: absent proof of incapacity or lack of real understanding, the court will not re-write testamentary choices.
Q: If you are making a will and capacity might be questioned, what should you do?
A:
- Instruct an experienced private client solicitor.
- Create a clear paper trail: record reasons for key inclusions/exclusions and how understanding was tested.
- Consider a medical opinion close to execution addressing the will decision and the Banks limbs.
- Adapt communication to the client’s needs (written prompts, side-by-side comparisons with prior wills), and document how assent was shown.
- Keep family from directing the content of instructions; record who was present and their input.
- Read the will aloud at execution, checking understanding and noting any corrections.
Q: If you are contemplating a challenge, where should you focus?
A:
- Evidence anchored to the execution date: clinical notes, the will file, execution witnesses, and any recordings.
- Process gaps: no read-through, no reasons for radical departures, family steering instructions, missing or poor notes.
- Appropriate experts: clinicians familiar with dementia/aphasia and testamentary capacity, not just general screening tools.
- Proportionality and alternatives: consider whether an Inheritance (Provision for Family and Dependants) Act 1975 claim is more pragmatic where capacity evidence appears strong.
Q: Can Clodes Solicitors take instructions from anywhere in England and Wales?
A: Yes. Clodes Solicitors are contentious probate specialists based in Cardiff. The firm has facilities to meet clients in London and across England and Wales, and regularly acts in High Court will‑validity disputes on both sides. With substantial Mental Health law experience, the firm is particularly well placed to handle cases where testamentary capacity and communication issues are central to a will challenge. To contact us https://www.clodes-solicitors.com/contact-us/
Bottom line from Scott v Scott
Even with dementia and severe speech impairment, a will can stand if, at the time of signing, the testator understood what a will does, had a basic grasp of their estate, appreciated who might expect to benefit, and the process shows the will reflects their genuine choices. Courts prioritise contemporaneous professional records and proximate clinical evidence; careful preparation and documentation are the best safeguards.
Resources
- Scott v Scott and others [2025] EWHC 2796 (Ch) – Approved Judgment (Judiciary): https://www.judiciary.uk/wp-content/uploads/2025/10/Scott-v-Scott_AS_RELEASED.pdf
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