The case of Parfitt v Jones and Another (2025) EWHC 1552 (Ch) concerned a challenge to the validity of a will on a number of grounds, the first being a lack of testamentary capacity.

My interest stems from the analysis of the expert evidence placed before the court on this point which unfortunately repeated many of the mistakes I see too often from those who seek to overturn the presumption of capacity.

As such, I recommend bearing in mind the points set out in the judgment when seeking to challenge such evidence.

The parties jointly instructed an associate Professor of Clinical Psychology and Neuropsychology who wrote two reports and gave several written responses to questions put to him.

The judge did not accept the expert’s opinion that the deceased lacked capacity for a number of reasons.

Firstly, while academically he had the relevant expertise to give evidence on this issue, the absence of medical qualification or experience as a treating clinician lessened the weight which could be placed on it.

Secondly, the expert did not examine the deceased which again necessarily limited the weight which could be placed on his opinion.

Thirdly, those who instructed the expert did not provide him with copies of the witness statements of those who knew the deceased which, given he had not been able to form an impression of her via direct encounter, would have been to his considerable advantage.

Fourthly, his conclusion as set out in his report was inadequately reasoned and evidenced.

While the judge agreed there was no doubt the deceased was experiencing memory problems and was later diagnosed with dementia, the expert failed to identify the nature of the decisions he will say she was unable to make as a result.  

Indeed, it was clear from the evidence when taken as a whole that she was able to make some decisions.

In addition, a degree of memory impairment is capable of being consistent with testamentary capacity and only becomes relevant if its effect is to take away the deceased’s understanding of the nature of the act she is performing.

Gemma Quinn is a Legal Director in the catastrophic and large loss injury team based in Manchester and member of the Expert Subject Matter Group.