Croll v Thorpe is a useful reminder of the distinction between a challenge to a person’s capacity during their lifetime and a challenge to the validity of their will after death. The two are separate inquiries, made in separate forums and the Court of Protection's jurisdiction does not extend to declaring wills invalid, and its findings will not necessarily bind those who later contest a will.
The background
Arthur Dennis Thorpe died in February 2024. He left two wills: a 2001 will leaving his estate to his wife, Margaret, or (if she predeceased him) to his three children equally; and a 2021 will leaving everything to one daughter, Julie Croll (the 2021 Will). His other two children, Jacqueline Cullis and Peter Thorpe, supported the earlier will.
The 2021 Will was made in the summer of that year, during a period in which Mr Thorpe (who suffered a stroke in December 2017) was living with Julie. A raft of legal documents was prepared on his behalf during this period. His capacity was subsequently the subject of detailed scrutiny in the Court of Protection, which in December 2023 found that he had lacked capacity to execute lasting powers of attorney on 20 July 2021, and went on to declare that the 2021 Will was invalid.
Notably, the Official Solicitor queried the Court of Protection's power to make that declaration, and the judge himself accepted that his intention had not been "formally to rule the 2021 [W]ill invalid" – though he did not formally amend his order.
The application
Julie brought a claim seeking to propound Mr Thorpe’s 2021 Will. The claim is defended by her siblings, acting on behalf of the estate of their late mother.
The defendants applied to strike out or obtain summary judgment against Julie’s probate claim on the basis that it was an abuse of process: the Court of Protection, they said, had already decided the validity question.
The decision
Master Clark dismissed the application. The reasoning is straightforward but important:
There can be no issue estoppel against a stranger to the proceedings
Mrs Thorpe's estate was not a party to the Court of Protection applications, and the defendants in the probate claim stood in her shoes as her executors. Not only did the Court of Protection judge's factual findings not bind the estate, but they were also not even admissible as evidence in the probate claim.
The Court of Protection lacked jurisdiction to declare the 2021 Will invalid
Section 15 of the Mental Capacity Act 2005 empowers the Court of Protection to make declarations as to whether a person has or lacks capacity – present tense. It does not extend to declarations about past capacity. The Master endorsed the view, treated as "highly persuasive", expressed by Munby J (as he then was) in Re M (Statutory Will) [2009] EWHC 2525 (Fam) that the Court of Protection has no jurisdiction to rule on the validity or invalidity of any will.
The will had not yet taken effect
At the date of the Court of Protection's decision, Mr Thorpe was still alive. The 2021 Will remained ambulatory and revocable, meaning questions about its validity as an effective testamentary disposition had not yet crystallised and, when they did, the proper place to determine them was a probate claim.
Practical takeaways
The decision is a clear illustration of a familiar but sometimes overlooked principle: findings in one set of proceedings do not create an estoppel against parties (or their privies) who were strangers to those proceedings.
Two practical points stand out for practitioners:
Court of Protection findings are not portable into a probate claim
Practitioners advising on contested probate matters following Court of Protection proceedings should not assume that factual findings – however thorough – will be transferred into the probate claim or even admitted as evidence. Where capacity is likely to be an issue both during the person's lifetime and after death, consideration should be given to which parties ought to be involved at the earliest stage.
The Court of Protection’s jurisdictional limits matter
The decision reinforces that the Court of Protection's declaratory power under section 15 of the 2005 Mental Capacity Act is confined to present capacity. Declarations as to past capacity, and a fortiori as to the validity of a will, fall outside that jurisdiction. Practitioners should be alert to this when orders are drawn up, lest recitals or declarations creep in that exceed the court's power.
It is also worth noting the Master's closing observation: whilst the strike-out failed, the comments of Williams J in refusing permission to appeal – praising the Court of Protection judge's "careful evaluation of a wide range and variety of evidence" – were described as "a strong indication of the likely outcome of this claim". The door is open, but Ms Croll may find little comfort on the other side of it.
Footnote
1. Croll v The Estate of Margaret Mary Thorpe & Ors [2026] EWHC 2232 (Ch).
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