The Law Commissioner’s Update To The Wills Act 1837

Update regarding capacity:

The Law Commission has been looking at updating the Wills Act 1837 (Act) to see if certain elements need updating. As you can see, the original Act dates back to 1837 and, whilst the majority of the Act still has leading legislation, as times are changing, the Law Commission has been looking to update some of the Act to bring it in line with modern times.

This has been ongoing since 2017 and, on the 16^th May 2025, it produced their final report. The initial consultation period began in 2016, in which they published the Consultation Paper, “Making a Will” in July 2017, followed by a consultation period which closed in November 2017. This was then paused in 2019 when they changed their focus slightly, returning back to the Wills Act in October 2023, where they published their Supplementary Consultation Paper, which closed in December 2023. This paper focused on 2 issues:

On 16 May 2025, they published their final report, Modernising Wills Law. This report contains 2 volumes:

Their final report, Modernising Wills Law, is aimed primarily at supporting testamentary freedom, protecting testators (including undue influence and fraud), and increasing clarity and certainty in the law where possible.

The Modernising Wills Law, volume 1 report has 17 chapters, however, in this particular blog, I am going to focus on chapter 2, Capacity.

As we know, a Will executed by a person who lacks testamentary capacity at the time is invalid. Whether someone has testamentary capacity might be raised prospectively or retrospectively. If the Will is being drafted by a professional Will writer or Solicitor, they need to satisfy themselves that the Testator has capacity at the time of making their Will by following the test in Banks v Goodfellow 1870.

Currently, the main legal issue is that there are 2 tests as set out above, the common law test as in Banks v Goodfellow, and the statutory test in the Mental Capacity Act 2005 (MCA), which the Court of Protection uses when assessing whether they can make a statutory Will on someone’s behalf. Case law has tested whether the MCA should displace the Banks v Goodfellow test in recent times, but the Court found that the Banks v Goodfellow test endured.

The Law Commission believes that adopting the MCA test could result in different results compared to the common law test in certain situations. For example, a testator might be deemed to have capacity under the common law test, but not have capacity under the MCA, and vice versa. The Law Commission believes that adopting the MCA approach, as with the Court of Protection, will promote a consistent and cohesive approach to testing capacity.

The Law Commission recommended that there should be a presumption of capacity and that the rule in Parker v Felgate (i.e., where a Testator had capacity at the date of instructions but not at the date of execution, the Will is likely to still be valid) should be retained in relation to capacity. So, although mental capacity is required to give instructions, it is not necessary at the time of execution. They recommend that guidance on assessing capacity should be outlined in the MCA Code of Practice, and anyone preparing a Will in a professional capacity for remuneration should be required to have regard to it.

Capacity has been a key element in contesting a person’s Will and, as mentioned previously, the leading case law is set out in Banks v Goodfellow 1870. It is important to note that the language used in this case was appropriate for the time (1870); however, in more modern times, the Courts have tried to implement a more modern adaptation to the language. In this case, it was found that bereavement caused the testator to have a severe affective disorder amounting to a mental disorder that deprived the testator of the decision-making capacity necessary to satisfy the 4 limb test in Banks v Goodfellow.

When comparing this to capacity in the MCA, this is for people over 16 and applies a single broad range of financial and welfare decisions, which may need to be made on behalf of a person who either temporarily or permanently lacks capacity. It is outlined in sections 1 to 3. Firstly, capacity is (rebuttably) presumed in s1(2). S2(1) then sets out the definition of a person who lacks capacity:

What are the main differences between the tests?

Comment

To summarise, the overall recommendation from the Law Commission on the element of capacity is that the test for capacity in the Mental Capacity Act 2005 should apply, and also recommended that the MCA Code of Practice should reference and explain the elements of the Banks v Goodfellow test in its guidance on capacity.

Why is this important for you?

If you want to challenge someone’s Will and you have serious concerns over their capacity, it is important that this is discussed with experienced solicitors who understand the tests in both the MCA and the limbs within Banks v Goodfellow, in order to properly assess the merits of your claim. As the Wills Act dates back to 1837 and is only recently being looked at to be amended, it is important that you have solicitors who are up to date with all of the case law in this area and are prepared for any changes.