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28 November, 2014

Test for testamentary capacity confirmed – Banks v Goodfellow remains

In the case of Walker v Badmin, heard on 20 November 2014, it has been confirmed that the correct and only test for testamentary capacity is that as outlined in the case of Banks v Goodfellow (1869-70 L.R. 5 Q.B. 549). 

The test for mental capacity as set out in sections 1 to 3 of the Mental Capacity Act 2005 (MCA 2005) does not interfere or replace the long held common law test.

The common law and statutory tests for testamentary capacity

The common law test for testamentary capacity has been long establish, being set out in the case of Banks v Goodfellow as follows:

“It is essential to the exercise of such a power that a testator [a] shall understand the nature of the act and its effects; [b] shall understand the extent of the property of which he is disposing; [c] shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, [d] that no disorder of the mind shall poison his affections, pervert 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 the mind had been sound, would not have been made.”

Since the MCA 2005 came into force, a new statutory test for capacity has been set out and from this time it has not been clear whether the common law test has been superseded by the statutory test or what their interplay should be. 

The MCA 2005 itself if not decisive on this point, its Code of Practice states as follows:

“4.32 There are several tests of capacity that have been produced following judgments in court cases (known as common law tests). These cover: 

  •   Capacity to make a will
  •   Capacity to make a gift
  •   Capacity to enter into a contract
  •   Capacity to litigate (take part in legal cases), and
  •   Capacity to enter into marriage.

4.33 The Act's new definition of capacity is in line with the existing common law tests, and the Act does not replace them. When cases come before the court on the above issues, judges can adopt the new definition if they think it is appropriate. The Act will apply to all other cases relating to financial, healthcare or welfare decisions.”

Lack of testamentary capacity cases post the MCA 2005

Since the statutory test has come into force there has been some uncertainty to the interplay between the statutory and common law tests. 

There has been a tendency in case law, and commentary on this area, to suggest that the provisions of the MCA 2005 are simply a modern restatement of the common law test, and that the test in the MCA 2005 will or may gradually replace the test in Banks v Goodfellow. 

Walker v Badmin

This month a decision has finally been made as to which test should apply. 

The facts of this case are not uncommon: two daughters sought to challenge the validity of their late mother’s will on the grounds of lack of testamentary capacity and lack of knowledge and approval. 

Their mother had left her property to her partner on a life interest, to benefit her daughters on his death, and left 50% of the residue of her estate to her partner and 50% between her two daughters. 

She had made the will approximately 5 weeks before her death and was suffering from the effects of a brain tumour at the time.

This case was heard by Mr N Strauss QC, sitting as a Deputy Judge in the High Court, and he took the opportunity in his judgment to consider the interplay between the common law and the statutory tests, and which test should prevail. 

The discussion in the judgment is detailed; one aspect he highlighted was that although the application of the two tests may often result in the same outcome, this will not always be the case. 

He outlined some of the differences in the two tests which could possibly result to different outcomes in certain cases as follows:

The burden of proof

One of the key differences between the two tests is in relation to the burden of proof.

Under the MCA 2005 there is a presumption of capacity, section 1(2) states:

“A person must be assumed to have capacity unless it is established that he lacks capacity”

The common law position (as set out in Re Key (deceased) [2010] EWHC 408 (Ch)) states:

“The burden of proof in relation to testamentary capacity is subject to the following rules:

(i) While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face, then the court will presume capacity.

(ii) In such case the evidential burden then shifts to the objector to raise a real doubt about capacity.

(iii) If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity nonetheless.”

Whilst the Deputy Judge opined that the difference between the common law and the MCA 2005 tests as to the burden of proof would be unlikely to make any difference in practice in most cases, there may be cases in which there is a dearth of evidence and the burden of proof may be decisive; in such cases the common law position would be reversed if the MCA 2005 were to apply.

The information the testator is required to understand

A further difference between the two tests is what the testator is required to understand when making a will. The common law requirements are set out above (in the extract from Banks v Goodfellow).

Section 3(1) of the MCA 2005 states that a person is unable to make a decision for himself if he is unable to understand the information relevant to the decision. 

The Deputy Judge’s view was that this may in some cases require more of the testator than the common law test, which concentrates on whether the will correctly represents the testator's intentions and his appreciation of the claims to which he ought to give effect, but does not require in all cases that he is able to remember and understand all relevant information.

The requirement under the MCA 2005 to consider the foreseeable consequences

Section 3(4) of the MCA 2005 provides that the information relevant to a decision includes information about the reasonably foreseeable consequences of deciding one way or another, or failing to make the decision.

The Judge felt that this too would probably require more of a testator than the requirements in the common law test in certain cases.

Further thoughts

Other points raised for consideration in this case include consideration of the factors which the Court of Protection has to take into account when ordering a statutory will be made for someone who lacks capacity (during their lifetime). 

It was argued that there should not be a parallel system of considerations (for what is required to make a will during lifetime and post death), and that the MCA 2005 should prevail over the common law position in challenges to wills post death on the grounds of lack of capacity. 

However the Judge rejected this position, highlighting that the two situations (the court authorising a will for someone lacking capacity during their lifetime, and a challenge to a will post the testators death on the grounds of lack of capacity) arise at different times and in different circumstances and the nature of such decisions is quite different. 

The Judge took the view that “there is simply nothing in the provisions of the Act [MCA 2005] to suggest that, as regards wills, it had to do with anything other than enabling the court to make decisions for living, incapable, persons”.

A further consideration, which the Judge accepted, and viewed as being in favour of the MCA 2005 test not being applicable to cases such as these, was that traditionally the threshold for testamentary capacity has been kept fairly low, so as not to deprive elderly people of the ability to make a will in their declining years. 

The Judge took the position that it was unlikely that the legislature would have intended to make the requirements for a valid will more stringent. 

He also thought it unlikely that the legislature would have intended the detailed case law on testamentary capacity to be replaced by a single definition applicable to a wide variety of decisions (also to be taken on behalf of living persons).

The Judge’s decision

The Judge concluded following consideration of the points outlined above that:

“I consider that the correct and only test for testamentary capacity, where what is in issue is the validity of the will executed by the deceased, is the common law test as set out in Banks.”

Going forward

This case has provided long awaited clarity on the relevance and potential impact of the statutory definition of capacity in the MCA 2005 on cases involving will challenges on the grounds of testamentary capacity. 

The common law in this area is well established, and no doubt many practitioners will welcome this decision.


This article was written by Rebecca Piper

For more information, please contact Rebecca on +44 (0)1483 252631 or [email protected] 

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