Test For Testamentary Capacity Confirmed – Banks v Goodfellow Remains

In the case of Walker v Badmin, heard on 20 November 2014, it has been confirmed that the correct and only test for testamentary capacity is that as outlined in the case of Banks v Goodfellow (1869-70 L.R. 5 Q.B. 549). The test for mental capacity as set out in sections 1 to 3 of the Mental Capacity Act 2005 (MCA 2005) does not interfere or replace the long held common law test.

The common law and statutory tests for testamentary capacity

The common law test for testamentary capacity has been long establish, being set out in the case of Banks v Goodfellow as follows:

"It is essential to the exercise of such a power that a testator [a] shall understand the nature of the act and its effects; [b] shall understand the extent of the property of which he is disposing; [c] shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, [d] that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties - that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made."

Since the MCA 2005 came into force, a new statutory test for capacity has been set out and from this time it has not been clear whether the common law test has been superseded by the statutory test or what their interplay should be. The MCA 2005 itself if not decisive on this point, its Code of Practice states as follows:

"4.32 There are several tests of capacity that have been produced following judgments in court cases (known as common law tests). These cover:

Capacity to make a will Capacity to make a gift Capacity to enter into a contract Capacity to litigate (take part in legal cases), and Capacity to enter into marriage. 4.33 The Act's new definition of capacity is in line with the existing common law tests, 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 it is appropriate. The Act will apply to all other cases relating to financial, healthcare or welfare decisions."

Lack of testamentary capacity cases post the MCA 2005

Since the statutory test has come into force there has been some uncertainty to the interplay between the statutory and common law tests. There has been a tendency in case law, and commentary on this area, to suggest that the...