Testamentary capacity in the spotlight

A common ground for contesting a will is mental capacity. It is often deployed by disinherited family members to set aside a will.

So, what is the test for mental capacity, how does it work in practice, and why are contemporaneous medical assessments important?

What is the correct test?

The common law test is found in Banks v Goodfellow (‘Banks’) which has been the position for 150 years, albeit with some tweaks to accommodate modern notions of mental health and capacity. However, a second test introduced under the Mental Capacity Act 2005 in 2007 has polarised the debate between Court of Protection and Chancery lawyers about which test is best.

I have been at the coalface of this debate when I acted in the High Court Appeal in Clitheroe v Bond [2021] when the arguments were put probably in the fullest way we have seen so far. However, the judge refused to permit the point on appeal and found that the Court was bound to apply Banks.

The only rational course in my view is for the legislature to adopt one single test. However, in the meantime, one can expect the Court to apply Banks when assessing testamentary capacity in a post-death will dispute.

Understanding the test – the 4 limbs

The Banks test provides ‘4 limbs’ which the testator must be able to satisfy.

Firstly, they must be able to understand the effect of the will they are signing. It relates to understanding the specific will in question. A key consideration will be the relative complexity or simplicity of the provisions under the disputed will.

Secondly, the testator must be able to understand the extent of the property they are disposing. The testator does not need to compile a mental inventory or valuation of their assets disposed of by the will, but they need to have a sufficient grasp of those assets.

They must also be able to comprehend the nature of the claims of others. If the testator wishes to exclude someone who may have inherited, the testator should leave behind an explanation of why this is. One could argue that Clitheroe v Bond undermines this point, or is at least a warning about saying too much as in this case the testator left behind a very detailed letter of wishes supporting her decision to exclude her daughter from her will, which was then dissected and subjected to a forensic judicial analysis (unfairly in my view).

Finally, the testator must have no disorder of the mind which perverts their sense of right or prevents using their natural faculties in disposing of their property by will. No insane delusion should bring about a disposal which they would not have otherwise made. To be a delusion, it must have sufficient fixity. One way of establishing this is whether anyone had successfully tried to reason the testator out of the belief.

The test does not determine whether the will is a fair one in all the circumstances of the case. We have testamentary freedom which can be influenced by caprice, passion or the power of new ties.

Case law

In the successful case of Biria v Biria [2024], we persuaded the Court that the disputed will was invalid for lack of mental capacity.

The deceased was a wealthy man with seven adult children, two of whom he lived with. My client was concerned that his Dad had lost the mental capacity to manage his money and was being financially exploited, including by the siblings he lived with. Obtaining a doctor’s assessment proved futile as the siblings refused to allow anybody access to their Dad and we were forced to invoke the jurisdiction of the Court of Protection. It took us bringing contempt of court proceedings against the siblings to achieve an assessment, when the doctor found Dad to be suffering from dementia and lacking capacity to manage his money. It was not until he died that a disputed will emerged, purportedly executed by him during the Court of Protection proceedings.

The key takeaway

The key takeaway is to obtain a contemporaneous medical capacity assessment when a testator is elderly, ill or vulnerable, even if you have no concerns.

In Biria, we suspected a will may be procured in suspicious circumstances and we acted pre-emptively. We succeeded in overturning the disputed will because we managed to achieve a medical assessment at around the time it was made. The judgment recognised that the doctor was the only person who had achieved access to the deceased. Had this not been the case the result could have been different.

The corollary of this is enshrined in the ‘Golden Rule’, meaning, if you are preparing a will for a vulnerable testator, you should arrange for a medical practitioner to confirm their capacity to make it and keep it on file. The recent case of Leornard v Leornard [2024] is further evidence in support of the Golden Rule, where the Court pronounced against the validity of the deceased’s last will.

My top tip for futureproofing your will is follow the Golden Rule. It is not a touchstone for invalidity, but it could well save your legacy ending up in the High Court.

This article was first published in Professional Adviser.