Assessing capacity to make a will – recent case suggests a new approach

Questions around testamentary capacity are one of the most common reasons for wills to be challenged – so it is incredibly important for private client lawyers to be able to assess this correctly, and stay up to date with the approach the courts will take in the event of such a challenge. Since 1870, practitioners have followed the test laid out succinctly in Banks v Goodfellow to assess their clients’ capacity. Since the Mental Capacity Act (MCA) 2005 came into force, questions have repeatedly been raised as to whether the apple cart would be upturned, with Banks v Goodfellow being relegated to the past by the more modern and universal test found in the MCA 2005. The case of Clitheroe v Bond (2021) confirmed relatively recently that Banks v Goodfellow had “withstood the test of time” and was still the correct test for testamentary capacity – however, the situation remains a little confusing, as we are left with separate tests for capacity applying to the making of a will as compared to other decisions (including, for example, creating a lasting power of attorney).

In the recent case of Baker v Hewston (2023), HHJ Tindal addressed this point and reached a progressive, and commendably pragmatic, conclusion: the tried and tested Banks v Goodfellow test remains good law, but the MCA 2005 test should be used as a cross-check. By way of summary, when taking instructions from clients, practitioners should now have regard to the following:

Banks v Goodfellow

The testator must:

1. Understand the nature of the act of making a will and its effects;
2. Understand the extent of the property of which they are disposing (i.e. their estate);
3. Be able to comprehend and appreciate the claims to which they ought to give effect (i.e. any moral claims upon them); and
4. Not be suffering from any insane delusion or disorder of the mind that would poison their affections (against particular individuals), pervert their sense of right, or prevent the exercise of their natural faculties.

Mental Capacity Act 2005

The client must be able to:

1. Understand the information relevant to the decision to be made;
2. Retain that information;
3. Use or weigh that information as part of the decision-making process; and
4. Communicate their decision (whether by talking or any other means).

HHJ Tindal proposed that the first three limbs of the Banks v Goodfellow test could be regarded as the ‘relevant information’ for the purposes of limbs 1-3 of the MCA test. The fourth limb of Banks v Goodfellow broadly reflects section 2 of the MCA, which states (at s.2(1)) that a person lacks capacity for the purposes of the MCA “if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain”.

Accordingly, if a testator meets both thresholds for capacity, the conclusion must be that they have capacity to make a will. If one test is met and the other is not, clearly further steps need to be taken to establish capacity (or otherwise).

It is worth noting that both tests operate on the basis of a presumption of capacity. Under Banks v Goodfellow, a testator is presumed to have capacity in absence of evidence to the contrary (although where there is evidence that the testator was suffering under some form of mental illness, as referred to in the fourth limb of the test, the evidential burden shifts, and it falls on those presenting the will to prove that the testator did have capacity). Under the s.1(2) of the MCA 2005, a person must be presumed to have capacity unless it is established that he lacks capacity. However, it remains a crucial part of the job for those drafting wills to ensure both that they have satisfied themselves of the testator’s capacity, and that this has been thoroughly evidenced (by way of detailed attendance notes, and, where appropriate, a specialist capacity assessment) in order to protect the testator’s wishes from the risk of challenge.

Practitioners should ensure they are up to date in applying both tests when preparing and executing wills for clients. Should practitioners wish to refresh their understanding of the MCA 2005 test, including guidance on interpreting and applying the limbs of the test, and cases where individuals experience temporary or fluctuating capacity, the MCA Code of Practice (Mental-capacity-act-code-of-practice.pdf (publishing.service.gov.uk)) is an invaluable tool (see in particular chapter 4, on the principles and procedures of assessing capacity under the MCA). HHJ Tindal’s approach provides a simple and sensible method for professionals drafting wills to satisfy themselves as to a client’s capacity. It could also be used as a tool for GPs and other medical practitioners when assessing capacity – practitioners may note this new approach when following the “Golden Rule”.

We await with interest whether the Law Society will take this approach on board as part of its wills project, which is aiming to modernise many aspects of the law on wills, including the test for capacity to make a will. In the meantime, applying this combination of both tests could help protect you, and the wishes of your clients, from the risk of future challenges.