Stanley died aged 91 in August 2020 in the height of the covid pandemic. The last will that he made was just a few months before his death, in May 2020. This was the sixth will he had made in a decade and his family beneficiaries shifted in and out of inheritance during that decade.
Stanley’s wife, Agnes, with whom he had three children (Ronald, Martin and Jennifer) predeceased him. During his marriage to Agnes there had been a period of separation starting in 1980. In this time, Stanley had moved in with a new partner, Kathleen. Stanley and Kathleen lived in a jointly owned property, the Bungalow. Stanley and Kathleen each made wills in 2010 leaving their half shares in the Bungalow to Kathleen’s daughter Diane and Martin.
After Kathleen died in 2014, Stanley changed his will to disinherit Diane and to favour Agnes, Ronald, Jennifer and Martin. In 2017 Stanley disinherited Martin, only to “re-inherit” him in a will in 2018, and then to disinherit him in his last will in May 2020.
Jennifer and her daughter, Emma, were Stanley’s executors under a will made in May 2020. Diane objected to a grant in Stanley’s 2020 will, noting Stanley’s diagnosis of dementia for several years and arguing that he did not have capacity to make a will from 2014 onwards. Jennifer and Emma brought a claim seeking a grant in the 2020 will. Under CPR 57 Diane required Jennifer and Emma to prove the validity of the 2020 will and to cross examine the witnesses involved in its preparation and execution. Having heard the evidence of the witnesses Diane withdrew her objection to the 2020 will as part of a compromise that she would receive a payment from the estate.
The Judge, HHJ Tindal, sitting in the Birmingham High Court, therefore did not need to write a lengthy judgment. He could have simply made an order ending the proceedings. However he did so, partly to ensure that Martin had a fair opportunity to challenge the validity of the 2020 will (Martin, who had also been disinherited by the 2020 will had not participated in the proceedings), and partly to take the opportunity to consider the differences between the Banks v Goodfellow test for testamentary capacity and the test set out in s2-3 Mental Capacity Act 2005 (the “MCA”). In particular, the Judge felt the need to put forward a potential compromise between the two tests in light of what he described as the “polarised debate” that has developed between Chancery and Court of Protection lawyers. On the one hand, he notes, Chancery lawyers take the “trenchant view” expressed in Theobald on Wills (19th Edition 2021) that the common law test for testamentary capacity remains the correct test. On the other hand, Court of Protection Practice 2023 “fumes” at the “striking” “reluctance of judges of the Chancery Division to mould the common law to assimilate the features of the statutory test”.
The Judge’s compromise solution consists of five points:
1. ss2-3 MCA do not strictly apply to testamentary capacity in probate cases
Whether the MCA applies depends on whether a decision is taken “for the purposes of the MCA” under s2(1). In a probate case, unless one of the parties lacks litigation capacity, it cannot be that the decision would be “for the purposes of the MCA”. This is because the Court of Protection has no power to rule on the validity of a will.
2. ss2-3 and the general common law on capacity are aligned
HHJ Tindal notes that if the approaches are substantially different there could be different decisions about the capacity of the same living testator for the same will in different courts. That would result in an impracticable, illogical or inconvenient result. The court must seek to avoid a construction that creates such a result (R v McCool  1 WLR 2431 (SC)) and therefore the court must interpret the MCA, where it applies in the context of testamentary capacity, as aligned with the common law test in Banks.
3. ss2-3 are broadly consistent with the common law on testamentary capacity
HHJ Tindal considers that the differences between the MCA and Banks have been overstated in the past. For example, Judges have noted a key difference between the common law and the MCA as to the burden of proof. In the common law, the burden starts with the propounder of the will, whereas under the Act, there is a presumption of capacity. In fact, says HHJ Tindal, a practical difference in outcome is rare. There is a presumption of capacity if due execution is proved, so with almost all validly executed wills there is a presumption of capacity. To take another example, Judges have suggested that, whereas the MCA does not distinguish between consequences which are (i) direct / immediate and (ii) collateral, the common law does (see Simon v Byford  WTLR 1097). HHJ Tindal disagrees. MCA s3(4) distinguishes between consequences which are and are not “reasonably foreseeable”. Therefore, both the common law and the MCA draw distinctions between different types of consequences which will turn on the facts.
4. ss2-3 and the Banks criteria are consistent and can accommodate one another
HHJ Tindal suggests that ss2-3 MCA can “accommodate” the Banks test. The first three limbs of the Banks test can be treated as the “relevant information” under s3 MCA. The fourth limb can “map onto” s2 MCA – properly understood it is essentially a causal test required in both common law and also in s2(1) MCA.
5. ss2-3 are appropriate to be included by analogy within the common law approach to testamentary capacity in probate cases
HHJ Tindal finds that, whilst a probate case would involve accommodating ss2-3 MCA within the common law not vice-versa, it does not involve applying the MCA and using Banks to put “flesh on bones” but rather applying Banks but using the MCA as a cross check. The MCA “supplements” the common law and should be applied “by analogy”. As Lord Westbury said in 1872 in Knox v Gye, “where the suit in equity corresponds with an action at law…in the words of the statute, a court of equity [acts by analogy] and adopts the enactment of the statute as its own rule of procedure”.
HHJ Tindal then goes on to apply his reasoning to Stanley’s various wills. In relation to each will he assesses its validity using the Banks v Goodfellow criteria and then using MCA 2005 as a cross check. In each case, his analysis “works” and the application of both tests result in the same outcome.
It is helpful to have this in depth analysis from a judge shortly before the Supplementary Consultation issues in September as part of the Law Commission’s Wills Project. Although we know that the Law Commissioners won’t be re-consulting on issues in the first consultation paper issued in 2017 (for example the interrelationship between the two tests for capacity), we have been told that policy has not been finalised on some issues and therefore they are still up for debate. The Judge here puts forward a solution which is in the spirit of both the Act and the common law and therefore could offer some hope of reconciliation. My own view: I think there is very little of real practical difference between the tests – I would rather the MCA test applied to all decisions and not just some. Consistency and clarity is ever so helpful when it comes to the shades of grey in the field of capacity. Drafting practice guidance is where our efforts should perhaps be focused.
This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.
© Farrer & Co LLP, June 2023