By Katie Scott, 39 Essex Chambers
If a dispute arises about a person’s testamentary capacity during their lifetime, this will be determined by the Court of Protection and the test will be that set out in section 2 of the Mental Capacity Act 2005 (MCA) (namely is the person at the material time unable to make a decision for himself (i.e. is unable to understand, retain, use or weight the relevant information, and communicate his decision – see section 3 ) in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.
In James v James [2018] EWHC 43 (Ch) the High Court had cause to consider (again) what the correct legal test is when determining a dispute about whether a deceased testator had the capacity to make a will during his lifetime.
As the Judge noted at paragraph 68, the traditional test in such as case is laid down in Banks v Goodfellow [1870] LR 5 QB 549 at 565 by Cockburn CJ:
“It is essential … that a testator shall understand the nature of his act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect, and, with a view to the latter object, that no disorder of the mind shall poison his affections, avert his sense of right, or prevent the exercise of his natural faculties, that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if his mind had been sound, would not have been made.”
However, since the coming into force of the MCA there have been inconsistent judgments as to whether this common law test has been supplanted by the statutory test.
- The Court of Appeal in the case of Simon v Byford [2014] EWCA Civ 280 held that the correct test was the common law test, but only because the will was made before the MCA came into force.
- In Walker v Badmin [2015] EWHC 71 (Ch), Nicholas Strauss QC sitting as a High Court Judge, having reviewed all the cases, concluded that the common law test was the sole test of capacity for determining will making capacity in retrospect, irrespective of when the will was made.
- Other Judges such as Lewison J in Perrins v Holland [2009] EWHC 1945 (Ch), and in Gorjat v Gorjat [2010] EWHC 1537, have come to the opposite view.
- HHJ Paul Matthews concluded that the correct test was the common law test. He did so on a number of basis including that:
- There is nothing in the MCA which suggests that it applies to judging capacity to make wills once they have been made and that the MCA is concerned with assessing the capacity of living persons;
- Banks v Goodfellow is not a recent innovation of the common law, and it is a principle of statutory interpretation that Parliament is assumed not to intend to overrule well-established rules of the common law without clear words, or at least necessary implication.
Does any of this matter?
In most cases, probably not, but there are real differences between the two tests which means that a will could be declared to have been made capacitously in a person’s life time (pursuant to the MCA), only to be successfully challenged after the testator’s death on the application of the Banks test. The differences between the two tests can be summarised as follows:
- Under the MCA there is a presumption of capacity (see section 1(2)) and the burden of proof is on the person disputing that P has capacity. When applying the Banks test however, although capacity will be presumed in cases where a duly executed will is put forward which is apparently rational on its face, it is only a presumption, and if a real doubt is raised about capacity, then it will be for the propounder to prove on the balance of probabilities that the maker of the will had testamentary capacity.
- The test under the MCA requires the testator to be able to understand, retain and use or weigh the relevant information. The Banks test does not require in all cases that he is able to remember and understand all relevant information. Lastly, the Banks test does not require the testator in all cases to understand, use or weigh information as to the reasonably foreseeable consequences of the choices open to him, whereas under the MCA it does.
What does all this mean for practitioners?
First of all, an appropriate case needs to be appealed to the Court of Appeal for a definitive answer! Until then:
- When advising testators in circumstances where there is any doubt (or likely to be a dispute) about capacity, obtain evidence as to the testators capacity pursuant to both the statutory and the common law tests.
- When advising propounders or challengers to a will, pick the time at which to make the challenge carefully. It could be to your client’s advantage to seek a determination of the dispute during the testator’s lifetime in the COP, or it could be to your client’s advantage to seek a determination of the dispute after the testator’s death in the Chancery Division.
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Topics: Mental Capacity, Entitlement
