The High Court has handed down a careful and unusually instructive judgment on testamentary capacity in Ginger and others v Mickleburgh and others [2026] EWHC 100 (Ch). HHJ Leslie Blohm KC, sitting in Bristol, set aside a 2014 will that diverted a Forest of Dean farmer’s estate away from his four daughters towards his sister, his sister’s family, and his long-term companion. The decision is a textbook illustration of the fourth limb of Banks v Goodfellow, the rarely-isolated rule about delusions of the mind, and it offers a sobering practical lesson in what happens when the ‘golden rule’ is treated as optional.
The facts in brief
Michael Gwilliam was a 71-year-old antiques dealer and small-scale farmer when, in late 2013 and early 2014, his behaviour changed dramatically. He became convinced that his neighbours, the Awre family, were waging a covert campaign of nuisance against him, banging on his windows at night, revving engines, and shining lights across his land, to force him to sell New House Farm at an undervalue. He stayed up all night, carried an air rifle, and in February 2014 was detained under section 2 of the Mental Health Act 1983 following an assessment arranged by his daughter Helen, a trainee mental health nurse.
Discharged after a fortnight with a diagnosis of persistent delusional disorder and mild cognitive impairment caused by diffuse cerebrovascular disease, Michael’s beliefs hardened. He became convinced that Helen and his other three daughters had conspired with their mother to have him sectioned so they could steal his property. In December 2014, ten months after his discharge, he executed a will leaving 25% of his residuary estate to his companion Joan, 25% to his sister Sheila, 25% to Sheila’s three sons, and only 25% to be shared between his four daughters, together with a forfeiture clause to discourage challenges. He had previously been adamant that he did not need a will because his daughters would inherit on intestacy, and that was exactly what he wanted.
He died in 2022. His daughters challenged the will on two alternative grounds: lack of testamentary capacity, and fraudulent calumny.
The legal test: the Banks v Goodfellow fourth limb
Testamentary capacity in England and Wales is still governed by Banks v Goodfellow (1869), as recently confirmed by Mrs Justice Joanna Smith DBE in Leonard v Leonard [2024] EWHC 321 (Ch) (which we have written about previously). The test has four limbs. A testator must understand:
- The nature and effects of the act of making a will
- The extent of the property being disposed of
- The claims to which they ought to give effect, and
- They must not be operating under a ‘disorder of the mind’ that poisons their affections, perverts their sense of right, or brings about a disposal that, with a sound mind, they would not have made.
Most reported capacity challenges turn on cognitive failure under limbs 1 to 3, typically dementia. Ginger is unusual because Michael’s cognitive function, while impaired, was not the problem. He understood what a will was, what his estate consisted of, and who his daughters were. What he could not do was perceive their motives accurately. His mind, in the words of the Banks v Goodfellow formulation, had been poisoned against them by an insane delusion arising from a mental disease, namely late onset schizophrenia caused by organic disorder of the brain.
The Judge applied the four-element framework summarised in Kunicki v Hayward and Goss-Custard v Templeman: a challenger must establish (i) an insane delusion or disorder of the mind, (ii) arising from a mental disease, (iii) that was fixed and incapable of contrary persuasion, and (iv) which had a causative effect on the testamentary dispositions. Once those elements are made out, the burden shifts to the party propounding the will to show the testator’s mind was not in fact affected by the delusion at the moment of execution.
Why the will failed
Three features of the evidence made this a clear case for the daughters.
First, the delusions were objectively testable and were tested. Police investigated Michael’s complaints of harassment and found nothing. Friends including a mechanic, Richard Brown, slept in a camper van at the farm for six weeks and saw and heard none of the things Michael described. His daughters, who initially believed him to the point of posting unpleasant comments about Charles Awre on Facebook, came to recognise that the noises and lights he was describing simply were not happening. The single joint expert, Professor Chris Fox, concluded on the medical records alone that Michael had been suffering from paranoid symptoms which would have affected his decision-making.
Second, the delusions were causative. Michael had said throughout his life that his daughters would inherit on intestacy and that he did not want a will. He only made one after he came to believe, wrongly, and as a direct consequence of his illness, that those same daughters had engineered his detention to steal his property. The Judge found that ‘had Michael not been suffering from such insane delusions he would have made no will at all’.
Third, and most damaging to the propounders’ case, the ‘golden rule’ was ignored. The will was prepared by an experienced probate paralegal at a firm in Coleford. She took instructions at the farmhouse with both Sheila and Joan, two of the principal beneficiaries, present in the room. There was no formal capacity assessment. The paralegal recorded that a mental health nurse, Paul Jolley, who happened to be visiting for an unrelated medication review, had confirmed Michael had capacity. Mr Jolley gave evidence at trial that he had said no such thing and would never give an off-the-cuff capacity opinion. The Judge accepted Mr Jolley’s evidence. As HHJ Blohm put it, the paralegal had ‘unwisely took some informal comment of Mr. Jolley’s as an expression of such an opinion when it was not intended to be any such thing.’
The Judge was particularly critical of the procedure adopted. Michael’s age alone might not have triggered the golden rule, but his recent sectioning under the Mental Health Act, his ongoing anti-psychotic medication, his stated intention to substantially disinherit his next of kin, and the fact that the beneficiaries had arranged the appointment and were present at the instruction-taking, plainly should have. A proper capacity assessment by Michael’s GP or another medical practitioner with access to his records would have removed doubt, either way.
The fraudulent calumny claim, and why it failed
The daughters’ alternative case was fraudulent calumny: that Sheila and Joan had poisoned Michael’s mind against them by making representations they knew, or were reckless as to whether, were false. The Judge accepted that nearly all the alleged statements were made (most were admitted) and accepted that they were factually false. Helen had not had her father ‘locked up’ for financial gain, the daughters had not stolen from him, the Awre ‘delusions’ were not true, and so on. He also accepted that Sheila and Joan were motivated, at least in part, by a desire to ensure the daughters did not inherit.
But the claim still failed, on the single ingredient that often defeats this cause of action: fraud. As Jacob J explained in Thomas Witter v TBP Industries Ltd, recklessness in this context means carelessness or indifference as to truth, not merely making an unreasonable statement. The Judge concluded that Sheila and Joan, however unreasonable and untethered from reality their beliefs were, genuinely believed them. They thought Michael was being persecuted. They thought the daughters were grasping. They were wrong, but they were not dishonest.
This is an important reminder for practitioners. Fraudulent calumny looks attractive because it captures the lived experience of many contentious probate disputes, the beneficiary whispering in a vulnerable testator’s ear. But the legal test is exacting. A challenger who can prove falsity, motive, and causation will still lose if the representor genuinely believed what they said. Where the evidence supports it, lack of testamentary capacity remains the surer route, as it did here.
What practitioners and families should take from this
Three points stand out.
The fourth limb of Banks v Goodfellow is alive and well. Where a testator’s cognition appears intact but their relationships with the natural objects of their bounty have changed inexplicably and in tandem with a documented mental disorder, the fourth limb deserves close attention. Expert psychiatric evidence on the link between an organic brain condition and a fixed delusional belief can be decisive.
The ‘golden rule’ is not a luxury. The professional involved here was experienced and acting in good faith, but the procedure she followed, instruction-taking at home, with beneficiaries present, leaning on the informal presence of a medical professional in lieu of a proper assessment, could not bear the evidential weight placed on it at trial. Where a testator has been sectioned, is on anti-psychotic medication, is substantially disinheriting next of kin, and the proposed beneficiaries are the ones arranging the appointment, a properly recorded capacity assessment by a medical practitioner with access to the records is not optional.
Genuine belief is a complete defence to fraudulent calumny. However badly a beneficiary may have behaved, however persistently they may have run down the disappointed beneficiaries to the testator, the claim falls away if the court accepts they meant what they said. This makes capacity, knowledge and approval, and undue influence the more reliable challenges in most cases.
Ginger v Mickleburgh is not a doctrinal departure. It is something more useful: a fully reasoned, factually rich application of settled principles to a family dispute of the sort that crosses our desks every week. For anyone advising on, or challenging, a will made in the shadow of a mental health diagnosis, it should be required reading.
If you are concerned about a will that was made when the testator may not have understood what they were doing, or you suspect that someone exploited a vulnerable relative to alter their estate plan, our specialist contentious probate team offers a free, no-obligation discussion of your circumstances. Many of our cases are funded on a genuine 100% No Win No Fee basis. Call 0161 515 7329 or request a callback through our website.
