High Court Upholds 19th Century Test For Mental Capacity

Choosing to challenge a Will is not a decision to be taken lightly.  Any experienced, highly-regarded Civil Litigation Solicitor will tell you that testamentary freedom is a cherished part of English law and not one that the Courts are prepared to readily tamper with.  However, there are some cases where it is abundantly clear that something went wrong when the Will was made, and the Courts must intervene. 

The recent High Court decision in Re Clitheroe (Deceased) [2021] EWHC 1102 (Ch) is an example of where the Courts will uphold a challenge to a Will.  Furthermore, it confirmed that despite being decided in 1869, the test for testamentary capacity set out in Banks v Goodfellow remained good law.

The background to the decision

The Respondent, Sue Bond was almost entirely cut out of her mother’s Will.  The Testator called the Respondent a ‘shopaholic’ and believed her daughter would ‘fritter away’ any money left to her.  The Testator had also accused the Respondent of stealing various items from her home including her treasured set of Harry Potter books.  Therefore, she bequeathed most of her estate to the Appellant, Ms Bond’s brother.

The County Court Judge found that the Testator’s beliefs were irrational to the point of being delusional.  He also accepted expert evidence that showed the Testator was suffering from an affective disorder which included a complex grief reaction and depression which impaired her testamentary capacity.

Ms Bond’s brother appealed the decision on the grounds that the County Court Judge should not have applied the Banks v Goodfellows test and instead should have applied the test under the Mental Capacity Act 2005.  He also argued that the Judge had misapplied the test regarding whether the Testator suffered from delusions when he said it was not necessary to prove that she could not be talked out of her beliefs.

The High Court’s ruling

The High Court reviewed the case law which confirmed that the Banks test had not been superseded by the Mental Capacity Act 2005.  Under the Banks test, the following needs to be present for testamentary capacity to exist:

  • The Testator must understand the nature of making a will and its effects.
  • The Testator must understand the extent of the property of which they are disposing.
  • The Testator must be able to understand and appreciate the claims to which they ought to give effect (i.e. who can bring a claim against the Will).
  • The Testator must have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by Will.

The Court observed that there was nothing within the Mental Capacity Act 2005 indicating that determining the validity of a Will was one of its purposes or powers.  Although it was important not to simplify the distinction between the test for capacity under the Mental Capacity Act 2005 and the Banks test to merely one of whether the person whose capacity is in question is living or dead, it was relatively clear from the terms of the Act that Parliament did not intend to alter the common law test for testamentary capacity provided by the 152-year-old case.

Regarding the correct test for delusion, the Court once again turned to an ancient case, that of Dew v Clark and Clark 162 E.R. 410, [1826] 1 WLUK 63 which established the legal concept of ‘insane delusion’ –  a Testator’s false conception of reality that may invalidate a Will altogether, or one or more of its provisions.  For a delusion to exist, it had to be:

  • more than a simple mistake that could be corrected
  • irrational and fixed in nature, and
  • out of keeping with the Testator’s background.

Justice Falk concluded that Dew did not lay down an absolute rule that a delusion could only exist if it were shown that it was impossible to reason the Testator out of the belief. 

The case was adjourned for three months to offer the siblings a chance to reach an agreement without the expense and distress of a further Court hearing.

Comments 

This case is one of many clarifying that the Banks v Goodfellow test remains good law in testamentary capacity cases.  Further test cases will inevitably be brought in the future, however, for now, the Courts have made clear that Banks may be an ‘oldy’ but it is still a ‘goody’.

Please note that this blog is intended for information purposes only and does not constitute legal advice. 

Understanding Testamentary Capacity

The number of Wills being challenged over the past decade has risen consistently, and it is easy to see why.  The stakes are much higher given the increase in house prices, meaning that many peoples assets are now worth hundreds of thousands (if not millions) of pounds. Furthermore, the younger generation are struggling to get on the housing ladder, and are increasingly reliant and / or expecting to receive an inheritance to do so. At this point, you may be wondering what Will disputes have to do with testamentary capacity. The the answer is that if a Will is not entered into with full understanding, it may be challenged and be declared invalid. 

What is testamentary capacity, and how is it established?

The word ‘testamentary’, in this case, refers to the act of bequeathing through a Will.  ‘Capacity’ refers to the cognitive ability of the testator (the person making the Will) to enter into the Will in a way that they fully understand.  Hence if a Will is entered into by a person who lacks the mental capacity to comprehend the implications of what is being stated, this would be considered to be a lack of testamentary capacity and will likely render the Will invalid. 

If the last Will is declared invalid the estate will be administered under the terms of the previous Will (if one exists) or under the rules of intestacy. This is a formula sued to distribute an estate if there is no will.  

Solicitors and other legal practitioners specialising in Wills must check that they are satisfied someone has testamentary capacity when taking instructions for a Will for a client. By doing so, its validity is less likely to be challenged following death. 

The risk with online and DIY Wills is that, in addition to the lack of professional legal guidance to ensure the Will is drafted to reflect all of the necessary provisions and life scenarios for your situation, it will lack evidence that checks were undertaken to verify capacity.  A professional Wills Solicitor will go out of their way to secure the proof needed, including requesting contemporaneous medical opinion, asking a medical professional to witness the Will, and attaching any other proof of capacity to the Will.

There are two main tests used by the Courts to prove testamentary capacity:

Banks v Goodfellow Test (Case law test)

 This common law test relates to the case of Banks v Goodfellow (1870), which used the following criteria to test for the existence of testamentary capacity:

  • The testator must understand the nature of making a will and its effects.
  • The testator must understand the extent of the property of which they are disposing.
  • The testator must be able to understand and appreciate the claims to which they ought to give effect (i.e. who can bring a claim against the Will).
  • The testator must have no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of his property by Will.

Despite being over 150 years old, the Banks v Goodfellow test has stood the test of time due to its clarity, the fact it is based on case law principles going back three centuries, and because it covers the elements necessary to establish an all-round understanding of what is being entered into.

The Mental Capacity Act 2005 (MCA 2005)

 The MCA statutory test uses five core principles to establish mental capacity, as follows:

  1. A presumption of capacity – everyone has the right to make his or her own decisions and must be assumed to have capacity unless proved otherwise
  2. The right for individuals to be supported to make their own decisions – people should be given the necessary assistance before it can be concluded they are unable to make their own decisions
  3. Individuals have the right to make what might be seen as eccentric or unwise decisions
  4. Best interests – anything done for or on behalf of people without capacity must be in their best interests; and
  5. Least restrictive intervention – anything done for or on behalf of people without capacity should be the least restrictive of their basic rights and freedoms.

The MCA 2005 test for capacity was not intended to replace the Banks v Goodfellow test; rather the intention was to allow judges to make their own decision as to which would be most applicable.  However, the High Court case of James v James and others [2018], confirmed that the Banks v Goodfellow test should be applied when assessing mental capacity in relation to making a Will.

Ensuring testamentary capacity for your Will

Establishing testamentary capacity at the time of Will creation will mitigate the potential for it to later challenged.  For solicitors, ensuring their client understands what they are entering into and providing supporting evidence where necessary is a paramount consideration.  By failing to undertake this key step, a well-drafted Will, with all elements considered, witnessed, and signed correctly, could be rendered useless via a challenge.  Don’t cut corners and allow your Will to be judged invalid due to concerns over capacity – your loved ones deserve certainty that your wishes were made with sound mind and judgment.

If you would like to discuss any of the above issues, please contact Ian Pearl, on 020 8349 5506 or by email

Please note that this blog is intended for information purposes only and does not constitute legal advice.