What we in the profession call “testamentary capacity”, many of my lay clients refer to as “ability” or even “the right to make a will”. The perception of “lack of capacity” as a “denial of right” means I am very often put in the difficult position of having to address questions or statements that my own clients ask of me in frustration and exasperation: “…But my mother was living on her own until the very end and doing very well, so how can lawyers now determine her capacity?!…”; or on the other end of the spectrum “…But my father was diagnosed with dementia shortly before/after the will was made, so how could he possibly have been determined to have capacity to make it?!...”.
Capacity is task specific. Accordingly, even medically confirmed capacity to decide that one does not wish to be resuscitated, need not necessarily mean that the same person will have capacity to make dispositions as to what should happen with their wealth in the case of their death. I appreciate this sounds very controversial and not less so than my other proposition: diagnosis of dementia, i.e. a clear recognition that deteriorating changes in someone’s brain are taking place, need not mean that the same person would not be able to validly dispose of their wealth by making a will. What is therefore the test in accordance with which testamentary capacity is being assessed?
The legal test for testamentary capacity is set in the case of Banks v Goodfellow (1870) LR 5 QB 549, i.e. in a case decided even before the Court of Appeal – which in our 21st century has been repeatedly invited to rule that the test is now outdated and should no longer be applied – had been established. The test, set out in a case 150 years ago, but reportedly going back for the best part of three centuries beforehand, is as follows: for a person to have capacity to make a will they must:
- understand the nature of the act (i.e. making a will) and its effect;
- understand the extent of the property of which they are disposing;
- be able to comprehend and appreciate the claims to which they ought to give effect and;
- no disorder of the mind shall poison their affections, pervert their sense of right, or pervert the exercise of their natural faculties, in other words no insane delusion shall influence their will in disposing of their property and bring about a disposal which, if their mind had been sound, would not have been made.
I agree with the critics of the centuries old test that the language used (paraphrased above retaining as much of the original wording as possible) is not easy. Equally, I agree that it is extremely difficult for anyone seeking to uphold a will to show that someone who is now deceased, very often many years prior to their death, had capacity to make their will. What would however constitute the better or fairer solution?
It is established law that when the will is rational on its face and duly executed, the court will presume capacity. It is then up to the person wanting to challenge the will to raise a real doubt about capacity. As soon as they have managed to do that, the burden of proof shifts. It is up to the person wanting to uphold the challenged will (i.e. propound the will) to prove capacity. This can cause problems. How do you prove that someone who is now deceased, some years prior, knew they were making a will and appreciated its effects? How do you prove that they understood the extent of their wealth and were able to comprehend and appreciate claims which they ought to give effect to? The latter is particularly tricky given the complicated family dynamics of our modern world and the often encountered tensions between the children from the first marriage and the surviving second spouse, or the blood relatives and the unmarried partner of either sex. Forcing someone who sees themselves as “merely trying to allow the last wishes of the deceased person being heard” to entertain the demands of a disappointed beneficiary may seem unfair. Though it is an established principle of English law that one can leave their estate to whomever they want, even a dog’s home if they want to!
In 2007, when the Mental Capacity Act 2005 (MCA 2005) came into force, it introduced a new test for decisions concerning capacity. Some argue the test is more modern and thus better. The test is set out in section 1 of the MCA 2005, with sections 2 and 3 assisting with our understanding of who is “a person who lacks capacity” and what does “an inability to make decisions” mean. Without reciting whole passages of the Act, lets’ focus on the two major differences between the Banks v Goodfellow capacity test, and the test set out in MCA 2005. Firstly, under the MCA 2005 “a person must be assumed to have capacity unless it is established that he lacks capacity”. What this means is that it is up to the person contesting capacity to prove it. Secondly, “a person is not to be treated as unable to make decisions merely because he makes an unwise decision.” A person cannot therefore be assumed not to have capacity because they make a decision (e.g. as to how to dispose of their wealth) which surprises or seems unusual. I should hasten to add that under the Banks v Goodfellow test, a decision that seems surprising (e.g. exclusion of a child under the terms of a will) does not automatically mean that a will is invalid. However an unusual, or what may seem as an irrational, decision, invites a deeper enquiry into the testator’s soundness of mind.
However, the MCA test does not apply to testamentary capacity. The legislation created MCA 2005 for a different purpose. Since the introduction of the MCA 2005, the Court of Appeal has been invited on numerous occasions to depart from the Banks v Goodfellow test in favour of the more modern test set out in the MCA 2005. Though the invitations sparked a lot of discussion in professional circles, the Court has so far successfully refused to override the centuries old test (including in a recently decided decision of Clitheroe v Bond  EWHC 1102(CH)), arguing that in the absence of the legislators’ express direction to change the applicable test, it has no power to do so. When publishing its consultation paper “Making a Will” in 2017, the Law Commission referred to the tensions that concurrent application of two legal capacity tests may create and made a provisional proposal that the MCA tests is adopted, supplemented by a Practice Code. However, the proposal caused some controversy and with the result of the Brexit referendum, any legislative initiative on the amendment of centuries old law on wills got put on hold. As the proposals are now being dug out from the bottom of the drawer, we will hopefully see what happens next in the not too distant future.
Meanwhile, what is the advice to those making or facing testamentary capacity challenges?
If you are planning to make a claim, you will have to raise concerns over capacity, not merely express frustration with the fact that the provision made for you is not what you had expected. For those on the receiving end of claims, if genuine concerns over capacity have been expressed, it will be up to you to prove capacity. How do you do that?
Medical assessment of the testator carried out at the time the instructions for the will were provided is the best and most convincing evidence of capacity. Admittedly, it is available in a handful of cases and even when available, not always conclusive. All the evidence providing an insight into whether the now deceased testator understood they were making a will and its effects; that they appreciated the extent of their wealth, and the claims that may be laid upon it, will be needed. Obtaining a copy of the will file and/or a statement of any professional who drafted or helped with the will is crucial. Medical records of the testator will prove incredibly insightful and will be essential if an expert is to be engaged in order to comment on the testator’s likely capacity retrospectively. Evidence of family members, neighbours or anyone who was close to the deceased testator and may be able to provide more than superficial insight into how the testator was really functioning will need to be sought.
If you need assistance in understanding the likely chances of a claim that you are about to bring, and/or one that you have been threatened with, please do not hesitate to contact me or a member of my team.