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Updating the test for testamentary capacity to make a will

The law concerning the mental capacity to make a will needs to be brought up to date, according to a Law Commission consultation published last week.

The law concerning the mental capacity to make a will needs to be brought up to date, according to the Law Commission as set out in a consultation published last week.

The current law is based on the Banks v Goodfellow test from the case of that name in 1870. It can be summarised by stating that to make a will a person must have the capacity to understand:

  1. that he or she is making a will, and the effect of his or her testamentary disposition;
  2. the extent of his or her estate and therefore the property that can be disposed of in his or her will;
  3. those who have claims on the estate; and
  4. this understanding must not be impaired by any disorder of the mind or delusions.

Although expressed in archaic terms, the Courts have attempted to adapt the test over time to deal with issues such as the effect of bereavement on capacity but still technical inconsistencies have developed as to how the test is interpreted and applied by the Courts.

More generally, it has been questioned whether the test in Banks v Goodfellow is actually appropriate given that it was created before many developments in modern medicine. Its’ focus on disorders of the mind and 'delusions' does not reflect the wide range of factors that are now understood to have the potential to affect an aging population, particularly dementia.
The Commission has rejected the idea of bringing in a whole new test for capacity based on, for example, the Mini Mental State Examination widely used by the medical profession to test cognitive ability, and instead has proposed the adoption of the test for capacity set out in the Mental Capacity Act 2005. 

That test can be summarised as:

  1. Is the person unable to make a decision for him  or herself in relation to the matter?
  2. Is the person unable to make the decision because of an impairment of, or a disturbance in the functioning of, his or her mind or brain?

The test adopts a functional approach so that a person’s capacity is assessed for a particular decision that has been made, or for a particular act that has been done. Different thresholds of capacity are required for different decisions and acts, based on their gravity and complexity.  A set of additional principles are then adopted which are that:

  1. A person must be assumed to have capacity unless it is established that he or she does not
  2. A person is not to be treated as unable to make a decision unless all practicable steps to help him or her do so have been taken without success
  3. A person is not to be treated as unable to make a decision merely because he or she makes an unwise decision
  4. It does not matter whether the impairment or disturbance is permanent or temporary
  5. A lack of capacity cannot be established merely by reference to a person’s age or appearance, or a condition or aspect of behaviour that might lead others to make unjustified assumptions about his or her capacity
  6. A question of whether or not a person lacks capacity must be decided on a balance of probabilities.

The Commission felt that a Code of Practice could set out what specific elements a person making a will would be required to understand.

This proposal suggested would ensure that the 19th Century approach to assessing testamentary capacity is confined to history: adopting the Mental Capacity Act would ensure that the law dealing with the capacity to make a will is modern and consistent with other decision making issues and is widely welcomed.

Responses to the consultation paper are required by 10 November 2017.

Richard Bate is Partner in the Wills, Trusts, Tax and Probate team at national law firm, Weightmans LLP.