In a recent court decision, the Court of Appeal have once more reaffirmed that the standard of testamentary capacity lies under common law, from the case of Banks v Goodfellow, rather than under the Mental Capacity Act 2005 (MCA).
Despite previous case law rulings, there has been some confusion over past years about whether we should move to the Mental Capacity Act test to determine when someone is legally and mentally capable of creating or amending a valid will.
The Code of Practice for the Mental Capacity Act is ambiguous in reference to the definition of capacity, which has caused confusions for practitioners and testators. The Code of Practice states that the MCA definition of capacity is “in line with the existing common law tests and does not replace them”, however, it allows judges in such cases to adopt the new definition, “if they think it is appropriate.” Case law indicates that thus far, judges have not thought it appropriate.
The Mental Capacity Act sets out a two-pronged test, first asking whether the person has an impairment of the mind or brain and secondly whether this impairment means the person is unable to make a specific decision when they need to.
The Banks v Goodfellow test:
Under the Banks v Goodfellow test, the person needs to understand the nature of making a will and its effects; understand the extent of the property which they are disposing; be able to comprehend and appreciate the claims to which they ought to give effect. Finally, they must have no disorder of the mind which prevents their sense of right and prevents the exercise of their natural faculties in disposing of their property by will.
Although case law and the Act itself have stated that the MCA can be considered alongside the traditional test, the Banks v Goodfellow test is still the one that will be applied. It is more specific and tailored to the circumstances under which a will is made, which is a fairly unique situation, not often replicated in other circumstances. The test under the MCA was not designed for testamentary dispositions, which are predominantly assessed retrospectively. It was designed to assess a living person’s ability to make specific lifetime decisions. Therefore, courts feel it would not be appropriate to conflate the two.
Finally, although the Mental Capacity Act test has been applied in numerous cases since its establishment in law in 2007, the Banks v Goodfellow test has been continuously explored and interpreted as our understanding has developed over the past 150 years. Many professionals will be happy to hear it is still going strong, as it promotes certainty in an area which can be surprisingly contentious.
If you or someone you know would like to make a will, please do not hesitate to get in touch with our Private Client team at Glaisyers ETL. Contact Chris Burrows, Partner, at [email protected] or 0161 833 5694.
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