Jean-Yves Gilg

Editor, Solicitors Journal

A review of testamentary capacity

A review of testamentary capacity


Howard Smith considers how the concept of testamentary capacity has evolved over time, including the impact of the Mental Capacity Act and the importance of the 'golden rule'

The familiar common law test for testamentary capacity set out in Banks v Goodfellow (1870) LR 5 QB 549 requires the following:

  • The testator must be capable of understanding the nature and effect of their will;

  • The testator must be capable of understanding the nature and extent of the property of which they are disposing;

  • The testator must be capable of comprehending and appreciating the claims
    to which they ought to give effect; and

  • For that reason, the testator must not be suffering from a disorder of the mind which poisons their affections, perverts their sense of right, or prevents the exercise of their natural faculties - so that 'no insane delusion' brings about a disposition which would not have been made if the testator had been of
    sound mind.

The test is one of capacity rather than knowledge. Therefore, the question is whether the testator is capable of understanding, not whether they actually understand (Simon v Byford [2014] EWCA Civ 280). There is no lack of capacity if a person does not know the nature and extent of their estate, provided that they have the capacity
to understand.

The burden of proof in relation to testamentary capacity was summarised in Key v Key [2010]
EWHC 408:

  • Although 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;

  • In such a case the evidential burden then shifts to the objector to raise a real doubt about capacity; and

  • If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity.

Impact of the MCA 2005

The Mental Capacity Act (MCA) 2005 introduced statutory provisions relating to capacity, including the presumption that a person must be assumed to have capacity until it is established that they lack capacity (section 1) and provisions as to what is meant by a lack of capacity (sections 2 and 3).

A number of cases have considered the impact of the 2005 Act on the common law capacity test in Banks and different views have been expressed - usually obiter. Those views have included that the common law test in Banks remains the relevant test (Scammell v Farmer [2008] EWHC 1100); that the statutory test under the Act replaces the common law test (Perrins v Holland [2009] EWHC 1945); and that the statutory test under the Act is essentially a restatement of the common law test (Fischer v Diffley [2013] EWHC 4567).

The issue was most recently considered in Walker v Badmin [2014] EWHC 71. Nicholas Strauss QC, sitting as a deputy judge of the High Court, said that, while there is a large degree of overlap between the test under the MCA 2005 and the common law test, there are potential differences:

  • In relation to the burden of proof, under the MCA 2005 a person must be assumed to have capacity unless it is established that they lack capacity (section 1(2)). At common law, the burden can shift (see above); and

  • The degree of understanding required by section 3 of the MCA 2005 may in some respects be greater (e.g. an ability to understand and remember all relevant information and to understand the reasonably foreseeable consequences of the choices open to the testator).

The judge reviewed the earlier authorities and concluded that the correct and only test for testamentary capacity remains the common law test set out in Banks.

Refinement of the Banks test

The four limbs of the Banks test relate principally
to capacity to understand or comprehend. In Key, Mr Justice Briggs concluded that a development
of the test was required in view of the advances in psychiatric medicine in the 140 years since Banks.
A test of capacity should, he considered, take account of a testator's decision-making ability. 

The testator, who was aged 89 and suffering from some memory loss, changed his will in favour of his daughters to the exclusion of his sons.

The new will was executed shortly after the death of the testator's wife. The medical evidence was that the effect of bereavement could be similar to depression and lead to increased suggestibility, leaving a testator disposed to agree to suggestions without troubling to form their own view.

On the evidence, Briggs J was unable to say that any of the four limbs of Banks were not satisfied; nevertheless, he concluded that the testator lacked capacity because he was unable to exercise the decision-making power required. Briggs J recognised that to take into account decision-making powers rather than simply comprehension was a development of the Banks test, but this was 'necessitated by the greater understanding of the mind now available from modern psychiatric medicine'.

Reasons for omission

The court will consider the reasons why a testator has omitted a disappointed beneficiary from a will if those reasons could demonstrate that the fourth limb of Banks is not satisfied (Sharp v Adam [2006] EWCA Civ 449). Traditionally, an 'insane delusion' has been regarded as a belief which no rational person could believe (Boughton and Marston v Knight (1873) LR 3 P & D 63) and which they cannot be reasoned out of (Dew v Clark and Clark (1826) 3 Add 79). However, more recently the courts have taken a more flexible approach.

In Walters v Smee [2008] EWHC 2029, the judge concluded that where the testatrix was acting under misapprehensions or false beliefs (that a prospective beneficiary was stealing from her and abusing her), which resulted from her impaired mental state (dementia) and which she would
not have held but for her impaired mental state, and where the misapprehensions caused her to change her will, she failed to satisfy the fourth limb of Banks. The judge treated the misapprehensions as synonymous with delusions. It was not necessary to show that no rational person could have held that belief where there was evidence of mental impairment.

Similarly, in Couwenbergh v Valkova [2008] EWHC 2451 and Re Ritchie [2009] EWHC 709, the court upheld challenges to the will where the reasons for omitting potential beneficiaries were based on false beliefs or irrationality.

However, the court will scrutinise the facts carefully, as in McCabe v McCabe [2015] EWHC 1591, for example. A challenge based on the fourth limb of Banks will not succeed if:

  • The testator does not believe the reason they put forward (because it will not be a delusion);
  • It can be fairly regarded as true;It is simply an exaggeration; or
  • It is simply a misunderstanding rather than a delusion (as in McCabe).

The medical evidence in McCabe suggested a technical distinction between a delusion and other forms of false belief resulting from mental impairment (e.g. confabulation). Such a distinction seems unlikely to be relevant to an assessment of capacity in view of the reasoning
in Banks.

The golden rule

Although the courts give significant weight
to an experienced solicitor's view of capacity (Scammell), a solicitor may miss signs of incapacity that would be apparent to a medical practitioner (Key). Therefore, the importance
of the golden rule in avoiding challenges to testamentary capacity continues to be emphasised by the courts, and yet many probate claims are still brought which might have been avoided if the golden rule had been followed.
In Burns v Burns [2016] EWCA Civ 37, it appears that the solicitor had practised for many years in non-contentious wills and trusts but had not heard of the golden rule.

The rule requires that, when a solicitor is instructed to prepare a will for an aged testator
or for one who has been seriously ill, they should arrange for a medical practitioner to satisfy themselves as to the capacity and understanding of the testator, and to make a contemporaneous record of their examination and findings (Key).

As appears from McCabe, it is not enough
for the solicitor to refer the testator to a medical practitioner. Compliance with the golden rule requires that the solicitor should ensure that the medical practitioner is provided with guidance on the legal test of capacity prior to the examination of the testator (the British Medical Association/Law Society book Assessment of Mental Capacity: A Practical Guide for Doctors and Lawyers is now in its fourth edition), and the solicitor should ask the medical practitioner to make and retain a full and contemporaneous record of their examination and findings. The solicitor should also be careful to take instructions in the absence of anyone who might benefit under the will, and consider exploring the reasons for changes to an earlier will.

However, if a solicitor is aware that the testator may die shortly, they should not delay the preparation of a will in order to try to find a medical practitioner willing to act (see, for example, Wharton v Bancroft [2011] EWHC 3250). If the solicitor delays and the testator dies without making a will, they might face a negligence claim from disappointed beneficiaries. They should, however, make a detailed and contemporaneous attendance note of the testator's instructions and matters relevant to capacity. SJ

Howard Smith is a barrister practising from Radcliffe Chambers