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Common law conflict

When considering disputed wills, are the courts to prioritise common law tests of capacity, or those set out in the Mental Health Act 2005?

11 February 2015

When considering disputed wills, are the courts to prioritise common law tests of capacity, or those set out in the Mental Health Act 2005?

The recent case of Walker and another v Badmin and others [2014] All ER (D) 258 has provided further judicial guidance on the correct approach to testamentary capacity following the Mental Capacity Act 2005 (MCA). This follows on in part from obiter comments by Stephen Smith QC in Scammel v Farmer (2008) EWHC 1100 (Ch).

Under the Banks v Goodfellow test, the testator must:

  • understand the nature of the will and its...

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