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What is testamentary capacity?

View profile for Leah Merrifield
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In order for a will to be valid, a testator must have the requisite mental capacity. Capacity is one of the most commonly used grounds for challenging a will. The recent case of Baker v Hewston gives an insight into how judges approach this complex issue.

Case law has confirmed that the correct test for testamentary capacity is found in the case of Banks v Goodfellow. Under Banks v Goodfellow, the testator must:

  1. Understand the nature of the act and its effects;
  2. Understand the extent of the property of which he is disposing;
  3. Be able to comprehend and appreciate the claims to which he ought to give effect; and
  4. Not be suffering under an insane delusion.

The Mental Capacity Act 2005 (“MCA”) sets out a different test for mental capacity, which applies in other scenarios, for example when capacity is considered by the Court of Protection.

Under section 3(1) of the MCA, in order to make a decision for themselves a person must be able to:

  1. Understand the information relevant to the decision;
  2. Retain that information;
  3. Use or weigh that information as part of the process for making the decision; and
  4. Communicate the decision.

Under section 2 of the MCA a person will lack capacity if they are unable to make a decision because of an impairment of, or a disturbance in the functioning of, the mind or brain.

In Baker v Hewston, Judge Tindal considered how to reconcile these two tests of capacity. He highlighted the importance of avoiding an illogical situation whereby somebody could be judged not to have capacity based on one test and judged to have capacity based on the other test.

Judge Tindal proposes that the test under the MCA should be interpreted as aligned with Banks v Goodfellow, so that illogical results are avoided. This is achieved by the first three limbs of Banks v Goodfellow being treated as the information relevant to the decision for section 3(1) of the MCA. The fourth limb of Banks v Goodfellow runs alongside section 2 of the MCA. In this way, the MCA can be used as a “cross-check” when capacity is considered in probate claims.

Judge Tindal also recognised that there is a presumption of capacity when a will is validly executed and appears on the face of it to be rational. He considered that under both Banks v Goodfellow and the MCA, there is a low bar for capacity.

In 2017 the Law Commission recommended that the Banks v Goodfellow test be replaced by the test under the MCA, or alternatively put on a statutory footing. It remains to be seen whether parliament will intervene, but in the meantime Baker v Hewston provides a useful framework for reconciling the two tests on capacity.

If you are concerned that a will could be invalid due to issues with capacity, please contact us and we will be happy to assist you.