Background
Julie Marie Croll sought to propound her father Arthur Dennis Thorpe’s 2021 will, which left his estate to her or, if she predeceased him, to her three children. His earlier 2001 will instead left the estate to his wife, Margaret Mary Thorpe, or, if she predeceased him, equally to their three children. Margaret’s estate was represented in the proceedings by Croll’s siblings, Jacqueline Mary Cullis and Peter Dennis Thorpe.
Before Arthur’s death, the Court of Protection found that he lacked capacity to execute lasting powers of attorney in July 2021 and made an order declaring that he lacked testamentary capacity in 2021 and that the 2021 will was invalid. After the Official Solicitor questioned the Court of Protection’s jurisdiction, the judge acknowledged that the intention had not been formally to invalidate the will, but the order was not amended. Margaret’s estate later sought to strike out Croll’s probate claim as an abuse of process or obtain summary judgment, arguing that it impermissibly contradicted the earlier findings.
The Court’s Holding
Master Clark dismissed the defendants’ application. Margaret was not a party to the Court of Protection proceedings, so that court’s factual findings did not create an issue estoppel binding her estate or Croll in this probate claim. The findings were also not admissible in the probate proceedings merely as proof of their truth. Croll likewise had not been a party to Arthur’s divorce proceedings, so findings made in that context produced no estoppel against her.
The Court of Protection had, in any event, lacked jurisdiction to declare retrospectively under section 15 of the Mental Capacity Act 2005 that Arthur lacked testamentary capacity in 2021 or that his will was invalid. Arthur was still alive when those declarations were made, meaning the revocable will had not taken effect and its validity as a testamentary disposition had not crystallised. That question became properly determinable in probate after his death. The ruling did not establish that the 2021 will was valid; it held only that the probate claim could not be disposed of through strike-out or summary judgment on the basis advanced.
Key Takeaways
- A Court of Protection declaration under section 15 concerns present capacity and does not extend to a person’s capacity at an earlier date.
- The Court of Protection cannot determine the validity of a revocable will while the testator remains alive; that issue belongs in probate proceedings after death.
- Earlier findings generally cannot create issue estoppel against a person who was not a party or privy to the proceedings in which they were made.
Why It Matters
The decision preserves the distinction between the Court of Protection’s protective jurisdiction during a person’s lifetime and the probate court’s jurisdiction to determine a will’s validity after death. Even strong capacity findings made in earlier family litigation do not automatically determine a later probate dispute where jurisdictional and party-identity requirements are absent.
The claimant nevertheless faces substantial difficulty at trial. Master Clark stressed that dismissing the application did not predict success on the merits and observed that the earlier courts’ assessment of the extensive evidence strongly indicated the likely outcome of the eventual probate claim.