Testamentary Capacity & The Mental Capacity Act 2005

Any individual making a Will (commonly referred to as a testator) must have the mental capacity to do so. Simply put, this means the person making the Will understands how a Will operates and what the provisions in the Will mean, in practical terms.

If the testator is unable to understand these things, then the Will they have made is likely to be declared invalid by a Court if challenged by any beneficiary or potential beneficiary after the testator’s death.

Banks v Goodfellow

The historical case of Banks v Goodfellow sets out the four-stage test which must be satisfied in order to confirm that the testator has sufficient capacity. This provides that the testator:

Kenward v Adams

For professional solicitors and Will writers, it is expected that they will follow the principle set out in the case of Kenward v Adams (known as the “Golden Rule”), in that an elderly or ill testator should undergo a medical assessment in relation to their testamentary capacity before their Will is executed (signed in the presence of two witnesses).

The introduction of the Mental Capacity Act 2005 (MCA) provides a more general overview of capacity which can be applied to numerous scenarios. The MCA did not however affect the validity of the test set out in Banks v Goodfellow and it has been commented that the MCA conflicts with the test already laid down.

The definition of capacity in the MCA is broader and can be applied to any decision. Our previous blog closely considers the criteria set out in the MCA which is essentially that a person is able to understand and retain information given to them, weigh up all of the information relevant to making a decision, and then make and communicate that decision. Whilst the tests are similar there are inherent differences.

Baker and another v Hewston

In the recent case of Baker and another v Hewston, the Court commented on how the two tests can be applied simultaneously, despite the MCA not otherwise applying in probate cases. HHJ Tindall comments that the first three limbs of the Banks test be treated as the “relevant information” in accordance with section 3 of the MCA and the final limb in accordance with section 2. This allows for the two tests to accommodate each other but does not require each test to be applied beyond its intended scope.

HHJ Tindall suggests the conflicting test could be applied as a cross-check and if a different result is reached it suggests the need for further consideration. For example, in the Court of Protection concerning a Statutory Will application the Court may also consider the Banks test despite the MCA being the relevant criteria, with Banks being used as a cross-check and to further support The Protected Party’s lack, or retention, of capacity.

It is possible that this could open the door to further submissions that the MCA test is used in Will challenges over capacity. However, the judgment from HHJ Tindall does make it clear that the comparison with the MCA should only be used to “cross-check” and not as a point of first resort, or as a determinative factor when Will challenges are brought on the basis of a lack of capacity.