In the last 12 months we have seen a series of cases challenging the validity of wills on the basis of a lack of testamentary capacity. Laura Abbott (Principal Associate) and Phoebe Zair (Paralegal) at Rothley Law, examine two of the more significant decisions and implications. 

What is testamentary capacity?

Testamentary capacity is the legal term used to describe a person's legal and mental ability to make or alter a valid will.

The test as to whether a person has the required capacity to make a will was set out in the 1870 case of Banks v Goodfellow.

The testator (the person making the will):

1. must appreciate the nature and consequences of making a will
2. must understand the extent of his or her property
3. must be able to understand and consider any moral claims to their estate
4. must not be affected by any disorder of mind or insane delusion

Recently there has been two significant cases which challenged the validity of wills on the basis of a lack of testamentary capacity. Here we will look at the cases, the decisions and their implications:

Baker & Anor v Hewston [2023] EWHC 1145 (Ch) 

The case of Baker & Anor v Hewston reignited the question of whether the test for testamentary capacity should remain the Banks v Goodfellow test or whether the Mental Capacity Act 2005 (MCA) should replace it. This question has been repeatedly asked and considered in case law since the MCA came into force.

The MCA (ss.2-3) sets out alternate criteria for testamentary capacity:

1. Assess whether the person has an impairment of their mind or brain, preventing the person from making a decision in relation to the matter, regardless of age or appearance.

2. A person is unable to make a decision for themselves if they are unable to:

• understand the information relevant to the decision
• retain that information
• use or weigh that information as part of the process of making the decision
• communicate his/her decision

Previous case law addressing the question had held the Banks v Goodfellow test should continue to apply.  But in Baker v Hewston the judge highlighted the importance of avoiding an illogical situation whereby somebody could be judged not to have capacity based on one test and judged to have capacity based on the other test (even regarding similar matters such as making a statutory will). 

The Baker v Hewston judgment suggested that both tests could and should be used concurrently; the MCA to act as a cross-check to Banks v Goodfellow. If the MCA test suggested a different result, this should lead to further consideration of the testator's capacity.

The judgement created some shock waves in the industry. Whilst some commentators felt the judge had reached a progressive, and commendably pragmatic solution, others felt it created more uncertainty. STEP (the body representing professionals in the industry) stated: “We feel that the case is likely to lead to further confusion and reinforces the case for having more clarity as to which rule applies […] It may be appropriate to re-state the rule from Banks in statutory form and make it clear when that test will apply”.

In 2017 the Law Commission had recommended that the Banks v Goodfellow test be replaced by the test under the MCA, or alternatively put on a statutory footing, but this has yet to be considered by parliament.

Leonard v Leonard [2024] EWHC 321 (Ch)

The debate has however since been put to bed in the judgment in Leonard v Leonard which firmly reinforces that the Banks v Goodfellow test very much remains good law, having ‘stood the test of time’.

The judgment examined the four limbs of the test in some detail and set out an authoritative and comprehensive summary of how the courts should approach them, noting developments in modern medical understanding regarding capacity issues. 

The judgment also considered the question of how determinative expert evidence is in contentious probate cases, finding that whilst expert evidence is useful, the role of the expert is to provide their opinion and that should be considered along with all of the evidence in the round; with the judge to be the one to make the decision overall. 

The judgment also considered the weight which should be attached to the will draftsman’s evidence.  Previous case law had established that it was ‘a very strong thing’ to overturn a will where the will was prepared by an experienced and independent solicitor who considers the testator to have capacity. A will, executed in these circumstances, should only be set aside “on the clearest evidence of lack of capacity” (Hawes v Burgess 2013).

In Leonard v Leonard, the will was prepared by a chartered tax advisor employed in a law firm, but her evidence was strongly criticised as showing no awareness of capacity issues.

The judgment therefore reminds drafting professionals they ought not to be complacent and those seeking to challenge a will need not always be despondent in the face of the document having been professionally prepared. The judgment endorsed the view expressed in Re Ashkettle 2013 that “[a]ny view the solicitor may have formed as to the testator’s capacity must be shown to be based on a proper assessment and accurate information or it is worthless”.

Summary

Whilst Baker v Hewston arguably raised more questions than it answered, commentary on Leonard v Leonard suggests that going forward this case will be considered the leading authority on testamentary capacity cases. Practitioners are reporting seeing a surge in enquiries of this nature, so this consolidating case is welcome.

However, one final notable point the judgment raised is a warning to proceed with caution:

“Parties to cases of this sort should be under no illusions as to the emotional and financial toll the extract and the considerable ordeal for both sides of contesting the matter to a final judgment.”

The impact of litigation in terms of time, cost and stress should not be underestimated; these sorts of disputes are not ventures to be entered into lightly. Cases remain very difficult; there remains a presumption of capacity and the capacity threshold is low. The principle of testamentary freedom means that people can make a valid will, even if they are elderly and/or vulnerable; relying on help from those whom they wish to benefit, and even if the terms of the will are hurtful, ungrateful or unfair to those whose legitimate expectations of testamentary benefit are disappointed (Hawes v Burgess 2013).

About the author

Laura Abbott is a Principal Associate at Rothley Law and is a member of the Society of Trust and Estate Practitioners (STEP).

Phoebe Zair is based in the Disputed Wills and Trusts at Rothley Law. She provides paralegal support by assisting solicitors in the team.

See also

Place a deceased estates notice

Everything you need to know about testamentary capacity

Wills and undue influence – case law updates 2024

James v Scudamore [2023] - using laches for will validity claims

Find out more

Baker & Anor v Hewston [2023] EWHC 1145 (Ch) (BAILII)

Mental Capacity Act 2005 (Legislation)

Leonard v Leonard [2024] EWHC 321 (Ch) (BAILII)

Images

Getty Images

Publication date

1 May 2024

Any opinion expressed in this article is that of the author and the author alone, and does not necessarily represent that of The Gazette.