With family structures becoming ever more complex and the size of the average estate increasing, it comes as no surprise that there has been a rise in the number of wills being contested. One ground upon which a will can be contested is testamentary capacity - in other words, did the testator (the person who made the will) have the necessary mental ability to make a will? This is something we get asked about a lot, particularly when there is a background of dementia, some other mental health condition, or where the testator is elderly.
Testing mental capacity
For over a century the benchmark test for assessing testamentary (or mental) capacity has been set out in the much-cited case of Banks v Goodfellows (1870) LR 5 WB 549 (‘Banks’). A person will have capacity at the time that they make a new will if they:
- understand the nature of making a will and its effects – i.e. that a will sets out who will inherit their estate once they die.
- understand the extent of the property which they are disposing – i.e. that they understand what assets they have.
- can comprehend and appreciate the claims to which they ought to give effect – i.e. who their relatives are and who might expect to have provision made for them in their will, even if they then decide to leave them out; and
- are not suffering from any disorder of the mind that might affect the above – for example, if they forget that they have children that they might otherwise consider including in their will.
Since the introduction of the Mental Capacity Act 2005 (‘the Act’), there has been some debate whether this alters the long-established test set out in Banks. Section 2(1) of the Act introduced a new twofold test; being that a person may lack mental capacity, and therefore testamentary capacity, if:
- At the time they make a new will are unable to make decisions for themselves; and
- This inability is because of an impairment of, or disturbance of the mind or brain.
So, with case law and statute conflicting, which test prevails?
A challenge to the benchmark
The test for testamentary capacity has again been clarified in the recent case of Clitheroe v Bond , Re  EWHC 1102 (Ch).
As is sadly often the case, this was a dispute between siblings over their mother’s estate. The testator, Jean, had three children, one of whom (Debra) had died before her mother. Jean had made two wills, both of which had been drafted by professionals. In both of these wills, almost all of her estate was left to her son, John. Jean had cut out her other daughter, Susan, because they had fallen out and because she considered Susan to be “a shopaholic and would just fritter…away” anything that she was left.
Susan brought this claim to challenge the validity of Jean’s will. She argued that Jean’s reaction to Debra’s death was so extreme that it impaired her capacity to make a will. If Susan were right and the wills were invalid, she and John would each inherit half of Jean’s estate under the intestacy rules.
The Court applied the Banks test and Susan won at trial. John appealed that decision, arguing that the test in the Mental Capacity Act should have been used instead.
This argument got pretty short shrift. The Court said that this issue should really have been raised at trial but confirmed that the correct test to apply was indeed the one set out in Banks, saying that this was “a decision which has withstood the test of time.’ The Judge said that parliament had not intended that test to change with the enactment of the Mental Capacity Act.
John also argued that the Court had got it wrong in the way it had decided whether his mother was suffering from delusions. On appeal , the Judge found that in considering whether someone was acting under an irrational and fixed belief, it should take a holistic view of all of the evidence. In other words, the Court had to look at the nature of the belief and how it arose; whether there was any basis for the belief; whether the testator formed that belief despite evidence to the contrary; the period of time over which the belief was held; and whether anyone challenged it.
Has it made a difference?
This decision does not therefore change the 4-stage test set out in Banks, but it does provide welcome clarification. It also serves as a useful reminder to solicitors and will writers that careful attendance notes need to be made when receiving instructions on the preparation of wills and dealing with their execution. This is particularly important if the testator is making changes to the gifts they had made in an earlier will, or if they have decided to exclude a family member.
The Court has repeatedly emphasised in recent case law that a will that is professionally prepared will be difficult to challenge, and so early legal advice should be taken if you are at all concerned about a loved one’s will.
If you do have concerns about the validity of a will, testamentary capacity is just one of the avenues to explore. Please don’t hesitate to get in touch and we will gladly talk you through all of the grounds upon which a will can be challenged.