How is testamentary capacity, otherwise known as the legal and mental capacity to make or alter a will, tested? While it appeared that the debate about the correct test for testamentary capacity was settled following the judgment in Clitheroe v Bond [2021] EWHC 1101 (Ch) the debate appears to be reignited by the recent judgment of HHJ Tindal in Baker and another v Hewston [2023] EWHC 1145 (Ch).

What was the judgment in Clitheroe v Bond?

We acted for the successful respondents in this claim in which the appellant argued that the correct test to be applied when considering the question of testamentary capacity is the one set out in the Mental Capacity Act 2005 (MCA 2005) rather than the case of Banks v Goodfellow (1870). 

When considering the appeal, HHJ Falks ruled that this question was not one to be raised in this claim as it would not further the overriding objective to deal with cases justly and at proportionate cost given that there had already been a five-day trial at the first instance. As a result, Banks v Goodfellow remained the correct test.

What is the Banks v Goodfellow test?

The case of Banks v Goodfellows (1870) set out that in order for a testator to have capacity to make a will they must:

• Understand the nature of their act, i.e. making a will and its effects.

• Understand the extent of the property of which they are disposing. This does not have to be exact, but the testator must be able to appreciate the approximate size of their estate.

• Comprehend and appreciate the claims to which it ought to give effect. The testator need not give effect to these claims; they need only be aware of their existence. For example, a testator need not leave a proportion of their estate to their children but must nonetheless appreciate that they have children and that those children could be said to have a moral claim on their estate.

• Not be subject to any disorder of the mind as shall poison his affections, pervert his sense of right or prevent the exercise of their natural faculties.

What is the test under the MCA 2005?

Under the MCA 2005 the starting point is that a person is to be assumed to have capacity unless it is established that they do not. A person is not to be treated as unable to make a decision unless all practicable steps to help them have been taken without success. Further, a person is not to be treated as unable to make a decision merely because the decision they make is unwise. 

Under the Act, a person lacks capacity in relation to a matter if at the material time they are unable to make a decision on this matter because of an impairment or disturbance in the function of their mind or brain whether this be permanent or temporary. 

They are considered unable to make a decision if they are unable to:

• Understand the information relevant to the decision

• Retain that information

• Use or weigh that information as part of the process of making the decision; or

• Communicate their decision (whether by talking, using sign language or any other means)

What is the background of Baker and another v Hewston?

This claim concerned the will of the late Stanley Howell. Stanley had a complex family dynamic having not divorced his wife - with whom he had three children and eight grandchildren - and was living with his partner for many years prior to his death and being supported by her daughter. 

The Claimants were one of Stanley’s children and one of his grandchildren. The Defendant was the daughter of his partner. Stanley made a series of 6 wills during his lifetime, the last being made in 2020. 

Unusually, rather than the Claimants challenging the validity of a will they sought to have it proven valid in solemn form. 

The Defendant did not raise a positive case under CPR 57.7(5)(a) essentially seeking a pronouncement of the previous 2010 will, which she believed to be a mutual will with her mother. The Defendant also questioned whether Stanley had testamentary capacity to make the 2020 will and knew and approved of its contents. This was due to the fact that when the will was made:

•  He was 91 years old and had frontal lobe dementia secondary to Pick’s disease

• The solicitor who prepared the will did not follow the golden rule

• He gave incorrect instructions that he only had two children and did not mention the third child who he disinherited

• The solicitor did not read the will over to him due to lockdown measures

What was the Judgment?

It is important to point out that HHJ Tindal was well placed to hear this case as he sits in both the Court of Protection and the Chancery Division, so was well equipped to consider and apply both tests set out above. In his Judgment he pronounced the 2020 will on the basis that:

• There was no medical evidence that Stanley’s decision making was affected by any mental disorder or delusion

• The solicitor who drafted the will had no concerns about his capacity; and

•  In 2019 Stanley signed a letter explaining why he intended to exclude his third child from a draft will

Of wider legal significance, HHJ Tindal made significant comments about the relationship between the two capacity tests and sought to reconcile the two.

He highlighted the issue set out in the Law Commission notes that having two different tests could lead to situations where there are different decisions about the capacity of the same living testator in different courts. This could happen as the Chancery Division, applying Banks v Goodfellow, could find that someone has the capacity to make a will whereas the Court of Protection, applying the MCA 2005, could decide that someone does not have the capacity and authorise a statutory will to be executed instead. He also considered the hypothetical issue identified by HHJ Falk in Clitheroe v Bond where a testator could fail the Banks v Goodfellow test but satisfy the MCA 2005 test leaving them in a position where no will could be made at all.

In order to reconcile the position, HHJ Tindal proposed that whilst the MCA 2005 does not strictly apply to probate cases, the MCA 2005 and Banks v Goodfellows tests are aligned and broadly consistent and can therefore accommodate each other. This would mean that the first three limbs of the Banks v Goodfellows test be treated as “relevant information” under the MCA 2005 and the fourth limb of the Banks v Goodfellows test should map onto the MCA 2005 test when considering if someone has a disturbance or impairment of the mind.

HHJ Tindal went further, suggesting that the inconsistency between the MCA 2005 and the rule Parker v Felgate, endorsed in Perrins, could also be reconciled. This rule is that a testator is required to have capacity when giving instructions for a will but that this is not necessary at the time of execution so long as the instructions for the will had not changed.

Referring to Lord Stephens in JB at p.64 he highlighted that capacity can fluctuate over time and s.2(1) MCA 2005 applies “at the material time” which is “decision-specific”. Applying this in the context of executing a will, the “relevant information” in Banks v Goodfellow applies at that “material time”. But if a testator has capacity but it deteriorates before execution, at that “material time”, the “relevant information” for executing a will is just that listed in Parker/Perrins.

What does this mean moving forward?

It remains to be seen whether the proposals by HHJ Tindal will have any impact on judgments moving forward. But, if followed, it could provide more consistency between decisions made in the Court of Protection and the Chancery Division where claims are heard following death. It does however unsettle the position previously established leaving ambiguity as to how the courts will interpret evidence put forward in claims. 

Lisa is an Associate Solicitor in the Court of Protection and Inheritance Disputes team in our Colchester office. You can contact her on lisa.cox@birkettlong.co.uk