For many years probate practitioners deciding whether their clients had capacity to give
instructions to make a Will have referred back to the rules set out in the 1870 decision of Banks -v- Goodfellow.
In 2007, the Mental Capacity Act 2005 (MCA) came into force and addressed, amongst other things, how to decide whether a person had capacity and, for a number of years after the introduction of the Act, there was a lively debate as to whether the MCA had replaced the Banks -v- Goodfellow test, but over time the general consensus was that it had not.
Now, in a lengthy (42 page) judgment His Honour Judge Tindal has looked again at this question in the case of Jennifer Spiers -v- Dianne Hewstonand has concluded that the MCA does have a role to play, when it comes to making Wills.
Spiers -v- Hewston
In the case of Jennifer Spiers -v- Dianne Hewston, the testator, ‘Stanley’ was found to have changed his Will multiple times during the last 10 years of his life, often disinheriting, then reinstating to his Will his three children and eight grandchildren resulting from his marriage to Agnes, who predeceased him, and from whom he was estranged, as well as ‘Diane’, who was the daughter of Stanley’s most recent partner Kathleen, who had also predeceased him. The argument centred around the fact that Stanley had been diagnosed with dementia during the period in which the multiple new versions of the Will were drafted, and as such he lacked testamentary capacity, rendering all Wills since that drafted back in 2014, invalid.
In particular, Diane objected to the 2020 Will being granted probate. In it, she was not listed as a beneficiary, and hadn’t been for many of the previous versions, but Stanley had gifted her the deeds to his and Kathleen’s property in 2014 upon his partner’s death, before choosing to disinherit her in favour of his other family only months later.
Having heard from two of Stanley’s friends (one of whom was a witness to the 2020 Will) Diane withdrew her objection as part of a compromise that she would receive a payment from Stanley’s Estate, a proportion of which she pledged she would donate to a dementia charity in his name.
The judge could have ended proceedings at this point but chose not to because of the unusual nature of the case. Firstly, one of Stanley’s children, Martin had chosen not to participate in any way, despite the fact that he was the focus of much of the chopping and changing with beneficiaries in the various Wills. The judge felt he deserved appropriate opportunity to respond to any judgement, and contest if he felt it was necessary.
Secondly, due to the MCA coming into effect in 2007, all the Wills were created in compliance with its regulations. Because of this, retrospective medical evidence could not be analysed, and there was limited live evidence, except for the 2020 Will, which itself lacked a doctor’s assessment of capacity and reading over to the beneficiary, thanks to COVID-19. Thus, a significant question arose regarding the existence of a “presumption of testamentary capacity,” and the impact of the lack of communication of the Will’s contents to the beneficiary, as both common law and MCA approaches differ on these issues.
The judge, therefore, was left with the decision as to whether Stanley’s numerous rewrites had more to do with his caprice than his capacity, and duly found that it was the former.
The judgement
The Judge concluded that the appropriate test of whether someone had capacity to give instructions for a Will remained that set out in Banks -v- Goodfellow and that the MCA 2005 was just a useful cross-check.
In short, which the judgment certainly was not, he said that if, in doing the cross-check, you came to a different conclusion from that which you had come to using the Banks -v- Goodfellow test, then you should go back and relook at your original decision on capacity to make sure that you had not made any errors.
At the very real risk of oversimplifying his decision, what the Judge said was that there was not really that much difference between the tests between the common law and the statutory test, and so you would therefore expect that in most cases the same conclusion would be reached.
There is a risk, so said the judge, that if the two tests were substantively different, then capacity may be found to be present in one Court (for example, the Court of Protection) but not in another (for example, the Chancery Division of the High Court), which would be impractical, illogical or inconvenient.
Thus, possibly contrary to previous decisions, the MCA does have a role to play in the assessment of capacity for Will drafting, but nevertheless, it is the common law tests in Banks -v- Goodfellow which still have to be met before a Will can be regarded as valid.
The Banks -v- Goodfellow test
In the case of Banks v. Goodfellow (1870), the standard for determining whether a testator has the mental ability to write a will was established.
The testator must, summarising Banks v. Goodfellow;
1. comprehend the nature of the Will and how it works;
2. have a general understanding of the scope of the property they are disposing of in their Will;
3. be aware of the people the testator would typically be expected to provide for (even if he decides not to) and be free from any mental misconception that would give him a justification not to benefit those people, and;
4. Must not be affected by any disorder of mind or insane delusion.
John Banks was the subject of a legal dispute in the case of Banks v Goodfellow due to his history of mental health issues and delusions. After spending some time in a lunatic asylum, he moved in with his sister’s daughter, Margaret Goodfellow, to whom he left his estate upon his death.
Unfortunately, Margaret passed away a few years later without a Will, and her paternal half-brother inherited her estate instead of Banks’ family. Banks’ son contested the Will, claiming his father lacked testamentary capacity. However, it was ultimately determined that although he had suffered from mental illness and delusions, they did not affect Banks’ decision to leave his estate to his niece.
Conclusion
In most cases, the idea that the MCA should be used to complement the Banks v Goodfellow test, whilst not superseding it, may make very little difference. But in more difficult cases such as Spiers -v- Hewston, it may be that those practicing in this area need to find the time to read the full 42-page judgment and see how it impacts on their decision as to the capacity of the proposed testator they have in front of them.
It is interesting to note that a Law Commission consultation (started in 2017 but then put on hold) is to re-start its work this year, looking at, amongst other things, whether the Banks -v- Goodfellow test should be changed to the test in the MCA. We’ll certainly be watching this space for further guidance and feedback on this matter.
