The common law test as identified in the case of Banks V Goodfellow (1870) sets out a test which practitioners should follow when assessing a testator’s capacity to execute a will, the test being that the testator must:
Understand the nature of the act of making a will and its effects;
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
Not be suffering from any insane delusion or disorder of the mind that would poison their affections, pervert their sense of right or prevent the exercise of their natural faculties.
Unlike other areas of law, the common law test established in Banks has stood the test of time, and it has continued to remain the relevant test for practitioners to apply when assessing a testator’s capacity. That was until the introduction of the Mental Capacity Act 2005 (“the Act”).
The Mental Capacity Act 2005
The Act introduced an alternative test for assessing a client’s capacity.
The test set out in the Act was that the client must be able to:
Understand the information relevant to the decision to be made;
Retain that information;
Use or weigh that information as part of the decision-making process; and
Communicate their decision (whether by talking, using sign language or any other means).
As a result, questions began to be asked as to whether the more modern test as set out in the Act should apply to the execution of wills as well with the common law Banks test being retired to the history books.
Clitheroe V Bond
In the case of Clitheroe V Bond  the High Court considered whether the common law test remained good law or had been displaced by the test as set out in the Act. The court held that whilst the Act governed areas of mental capacity, such as the execution of a lasting power of attorney or court of protection matters, it did not extend to determining if an individual had capacity to enter into a transaction, such as making a will. The court therefore confirmed that the Banks test should continue to be used when assessing a testator’s capacity to execute a will.
Baker V Hewston
Following the Clitheroe decisions, practitioners were able to relax once again, content in the knowledge that the court had found that the common law test in Banks continued to be the correct test to apply when considering the question of capacity. Unfortunately, this was short-lived as questions continue to be asked, and the matter has recently come back before the court in the case of Baker & Another V Hewston . This case was of significant importance to probate practitioners as, in what was believed to be the first case of its kind, the court upheld the validity of a will which had been executed over a car bonnet during the COVID pandemic.
In a “two for one” special, however, the court also considered the question of which test should be applied by practitioners when assessing a client’s capacity. Having reviewed recent case law and the relevant text book authorities for both court of protection and chancery work, the judge confirmed that the Banks test remained good law but concluded that the test in the Act should be used as a cross-check.
The judge proposed that the first three limbs of the Banks test should be treated as the “relevant information” required under Section 3 of the Act with the fourth limb mapping onto Section 2 of the Act which states that a person lacks capacity for the purposes of the Act if “at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of or a disturbance in the functioning of the mind or brain”.
Presumption of capacity
It is important to remember that both tests operate on the basis of a presumption of capacity. Under Banks, a testator is presumed to have capacity in the absence of evidence to the contrary (although where there is evidence that the testator was suffering from some form of mental illness, the evidential burden shifts and falls on those presenting the will to prove that he did have capacity).
Under Section 1(2) of the Act, a person must be presumed to have capacity unless it is established that he lacks capacity.
Notwithstanding the presumption, it remains very important that practitioners ensure that they have satisfied themselves as regards a testator’s capacity with the same being thoroughly explored and evidenced by way of detailed attendance notes and, if appropriate, a specialist capacity assessment test from a medical practitioner.
As a result of the Baker decisions, practitioners should now ensure that they apply both tests when assessing a testator’s capacity to make and execute a will. It has always good practice to ensure that a detailed attendance note is taken of all meetings with the testator in connection with the preparation and execution of a will. But in light of the Baker decision it is now all the more important and practitioners would be well advised to ensure that their consideration of the question of assessment is well documented.
In the meantime, the matter has been reviewed by the Law Commission in their 2017 Consultation (No. 231) “Making a Will”. The Commission proposed replacing Banks with the test in the Act or alternatively, putting it on a statutory footing, but no formal steps have yet been taken to implement either of these recommendations. An update report is due to be published later this year, and it remains to be seen the extent to which steps will be taken as regards any amendments to the law.
If you are an executor or beneficiary under a testator’s will and wish to receive legal advice on a potential claim to uphold or challenge the validity of a will on the basis of testamentary capacity, please contact Ally Tow in our Dispute Resolution team on 07894 512 991 or by email at [email protected].
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.