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?

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 effect;

• have some idea of the extent of the property of which they are disposing under the will; and

• be aware of the persons for whom the testator would usually be expected to provide and be free from any delusion of the mind that would cause him reason not to benefit those people. 

The MCA introduced a new test of capacity under which an individual should be assumed to have capacity unless proved otherwise. To satisfy the test, it is necessary for an individual to understand all information relevant to the decision that is being made, and to include any consequences of the decision that are reasonably foreseeable. Under the MCA, an unwise decision does not constitute a lack of testamentary capacity.

The general view of practitioners has been that the MCA test should be used to complement the Banks test, but that it does not supersede it. The precise legal position has, however, been relatively unclear.

The testatrix in Walker v Badmin was 53-years-old and suffering from a brain tumour. In her will, she left her property on a life interest trust for her partner and divided her residuary estate into two shares, one of which passed to her partner and the other to her two daughters. She died five weeks later and her daughters challenged her will on several grounds, including lack of testamentary capacity.

The testatrix was very recently divorced from her estranged husband and had been living with her 35-year-old partner, Mr Badmin, for two years. It was found that the testatrix did have capacity to make a will, and the will was upheld.

In his judgment, Strauss LJ spent some time considering the tests for capacity in Banks and the MCA. He concluded that the MCA test is more difficult to satisfy than the Banks, for several reasons.

Burden of proof

Under the MCA, capacity is assumed unless proved otherwise. Under the Banks test, the court will presume capacity and the burden of proof is on the person contesting a will to raise a real doubt. If that real doubt is raised, the burden of proof shifts to the person who claims the will is valid, to establish capacity.

Requirement to understand information

The MCA requires the person to understand all the information relevant to the making of a decision. The Banks test arguably does not go this far, requiring the testator to understand the claims to which he ought to be giving effect, but not necessarily to remember and understand all the surrounding relevant information.

Reasonable foreseeability

Under the Banks test, it is not necessary to understand the reasonably foreseeable consequences of the will.
It is simply necessary for the testator to understand who he ought to be considering to benefit.

Strauss LJ's view was that the MCA was not intended for the use of the courts in making decisions regarding the testamentary capacity of deceased testators. The standard required for testamentary capacity has historically been quite low, as testators are often quite elderly, and he did not believe that it was the legislature's intention to override this.

In Walker v Badmin, the testatrix would actually have satisfied both the Banks and the MCA tests,
so the result would have been the same whichever test was applied and the comments made by Strauss LJ regarding the applicable test were academic. That said, Strauss LJ's judgment is a welcome judicial statement of the correct test for testamentary capacity.

Leah Steele is a solicitor at Hugh James

She writes the regular vulnerable clients comment in Private Client Adviser

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