Analysis
Stanley was married to Agnes and had three children: Ronald, Martin and Jennifer. He also had eight grandchildren including Jennifer’s daughter Emma and Ronald’s son Luke. Stanley separated from Agnes in the 1980s and moved in with his partner Kathleen, supported for many years by her daughter, the defendant. In 2010, Stanley and Kathleen each made wills leaving half shares in their new jointly owned home in Birmingham (the ‘Bungalow’) to Martin and the defendant. Kathleen died in April 2014 and Stanley handed the deeds to the Bungalow to the defendant in an envelope marked ‘Di, keep safe, your half of house, Stan’. A few weeks later, in June 2014, Stanley changed his will to disinherit the defendant and to favour Agnes and their children. Late in 2017, Stanley made a new will to disinherit Martin, then changed his mind to reverse it in 2018, then disinherited him again in his last will made in May 2020. This was prepared by Mr Penn of Anson’s Solicitors who, while not observing the ‘golden rule’ to obtain a capacity assessment, recorded Stanley as a ‘bright, if not very sprightly, 90 year old’, who was hard of hearing but ‘could not have been more alert and conversant’, and observed that there was ‘absolutely no reason whatsoever why he would lack capacity’. The instructions were given on 13 March 2020 and the will was executed on 23 May 2020, leaving the Bungalow and £100,000 to Jennifer and the residuary estate divided into 150 shares between Ronald (100 shares), Emma (40 shares) and Luke (ten shares). No provision was made for the defendant and no mention was made of Martin. Subsequently, a medical note dated 1 June 2020 recorded that Stanley was ‘alert and orientated’. He died on 5 August 2020.
After Stanley’s death, the defendant objected to his will being admitted to probate, pointing out that he had had a diagnosis of dementia for many years (he had been briefly ‘sectioned’ in 2009) and that she was concerned that he did not have testamentary capacity after 2014. Stanley’s executors brought proceedings to seek a formal declaration of validity of his last will.
Held (declaring for the force and validity of the last will):
Since the enactment of the Mental Capacity Act 2005 (MCA), which came into force on 1 April 2007, there has been a debate between lawyers in the Chancery Division and the Court of Protection as to whether the familiar common law test for testamentary capacity as enunciated by Lord Cockburn, CJ in Banks v Goodfellow [1870] (as affirmed in Sharp v Adam [2006]) had been superseded by the statutory test as set out in ss2 and 3 MCA. Mr Strauss QC had observed in Walker v Badmin [2014] that:
‘There has been a tendency in the cases and textbooks… to suggest the provisions of [MCA] are simply a modern restatement of Banks [and]… can, optionally, be applied and… will or may gradually… replace the formulation in Banks. It does not seem to me… this compromise solution is an available one. There are clear differences… The tests overlap and will often produce the same result, but not always.’
Theobald on Wills stated that it has been established, albeit only at first instance, that the correct test remains the common law test. That clarity of the position has not been helped by a confusing statement in the Mental Capacity Act Code of Practice:
‘The Act’s new definition of capacity is in line with the existing common law test, and the Act does not replace them. When cases come before the court on the above issues, judges can adopt the new definition if they think that is appropriate…’
with Theobald concluding that both sentences are plainly wrong.
Respectfully disagreeing with Theobald, the MCA Code of Practice was correct in stating that ss2 and 3 are ‘in line with the existing common law tests and the Act does not replace them’. Further, with respect to Mr Strauss QC in Walker, the following compromise solution was tentatively proposed:
(1) Sections 2 and 3 MCA do not strictly apply to testamentary capacity in probate cases
The test for assessing testamentary capacity in probate cases continues to be governed by the common law. However, ss2 and 3 MCA would apply where a retrospective assessment of capacity to enter into a transaction (including a will) is required for the purposes of the MCA. Whether the MCA applies depends on whether a decision is taken ‘for the purposes of the MCA’.
(2) Sections 2 and 3 and the general common law and capacity are aligned (and consciously so)
If the approach to testamentary capacity in common law is substantively different from that in the MCA, there could be different decisions about the capacity of the same (living) testator for the same will in different courts. The simple way to avoid such a result would be to interpret the MCA where it applies in the context of testamentary capacity as aligned with the common law test in Banks (as clarified and modernised in Sharp). The judgment of Peter Gibson LJ in Hoff v Atherton [2003] was particularly important for his observations on the general ‘convergence’ in the law of mental capacity, focusing not on the literal wording of Banks which suggested actual understanding, but on the ability to understand, the correct approach being not just ‘issue’ but ‘decision’ specific (ie depending on the particular facts) and what was ‘information relevant to a decision’. Hoff came only months before the MCA was enacted, showing Parliament that testamentary capacity was not ‘out of step’. The drafters of the MCA Code of Practice were correct: the MCA was ‘in line with’ the common law, even on testamentary capacity – Theobald was wrong on this point.
(3) Sections 2 and 3 are broadly consistent with common law on testamentary capacity
The differences between the MCA and Banks were overstated by Mr Strauss QC in Walker. A practical difference on the burden of proof is rare; even with a dearth of evidence, if due execution is proved and the will appears rational on its face, there is a presumption of capacity. Where a will is irrational on its face, thereby rebutting a presumption of capacity, the evidential burden will shift back to the propounder of the will. However, this was an evidential burden, not a legal one. As a matter of fact, the requirement to understand ‘reasonable foreseeable consequences’ in s3(4) was not inconsistent with Banks. Moreover, s3(1) does not require a person to be able to understand all ‘relevant information’ in order to make a decision and there is a crucial role for explanation in helping a person to make a decision.
(4) Sections 2 and 3 and the Banks criteria are consistent and can ‘accommodate’ each other
Given the differences between ss2 and 3 MCA and the common law test on testamentary capacity are overstated, the straightforward way of reconciling them was for the statutory test (which is ‘issue specific’) to ‘accommodate’ the common law test. That is for the first three limbs of the Banks test to be treated as the ‘relevant information’ under s3 and the fourth limb to map onto s2 MCA. Given that ss2 and 3 MCA adopt an ‘issue specific’ test of capacity, which depends on the particular matter under consideration, the ‘relevant information’ which must be understood, retained, weighed and communicated will differ too. Indeed, it will not only differ on the type of case, but on the ‘particular facts’ of a case. Further, given the consistency between testamentary capacity at common law and the statutory test, were it assessed under the MCA (ie by the Court of Protection) the ‘relevant information’ would be the same as the first three limbs of Banks.
While the Law Commission has suggested that the rule in Parker v Felgate [1883] as endorsed in Perrins v Holland [2010] is arguably inconsistent with the MCA, they too can be reconciled – 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. Furthermore, while at first sight the language is different, there is a close correlation between ‘disorders of the mind or delusions’ in the modern sense and ‘an impairment or disturbance of the mind or brain’ in s2 of the MCA. Of course, the statutory test as applied to testamentary capacity on the one hand and the common law test in Banks on the other are not identical; simply they are broadly consistent and one could ‘accommodate’ the other depending on which applies. Finally, as properly understood, the fourth limb of Banks is essentially a causal test, required in both common law and s2 of the MCA. In short, statutory law and common law can ‘accommodate’ each other.
(5) Sections 2 and 3 are ‘appropriate’ to be included by analogy within the common law approach to testamentary capacity in probate cases
As Munby J did in A Local Authority v MM [2007], it would be ‘appropriate’ to adopt ss2 and 3 MCA as a ‘cross-check’ of the common law test in Banks.
On the facts of the case, both on the basis of the common law test in Banks and using the MCA as a ‘cross-check’ there was no doubt that Stanley had testamentary capacity to make his last will. It may have been unfair, but it was not irrational. When it was duly executed, there was a presumption of capacity which had not been rebutted. In relation to the first three limbs of Banks, Stanley clearly had an understanding of the nature and effect of his will, of the extent of his property and the claims upon him. There was simply no evidence of mental disorder or delusion affecting his decision making. Mr Penn’s failure to follow the ‘golden rule’ did not in this case undermine that conclusion. The medical notes did not suggest incapacity at that point. As a cross-check, the same conclusion was reached under the MCA.
JUDGMENT HHJ TINDAL: Introduction [1] This is a case which at a legal level is about the relationship between the common law test of testamentary capacity in Banks v Goodfellow (1870) LR 5 QB 549 and the Mental Capacity Act 2005 (‘MCA’). However, at a human level, it is about the impact of a deceased …Continue reading "Baker & anr v Hewston [2023] WTLR 815"