It they no longer possess the mental ability

It is the idea of the UK courts that aperson making a will should possess mental capacity and the freedom to disposedof property as he or she sees fit. They also recognise the ambulatory nature of wills; which is capable of being changedor revoked at anytime prior to the testator’s death. The issue therefore is what can make a willinvalid by the courts and by what process a will can be challenge?  We would therefore look at the test developedby the 1870 case of Banks v Goodfellow as well as the modern statute of theMental Capacity Act 2015, the UN charter on persons living with disabilitiesand the law commission report of the wills.

For a testamentary will to be valid it mustcomply with the fundamental requirements of a will, in that there must be:1.      Testamentary intention 2.      The testator must have capacity3.      The formalities set out in thewills act 1837 must be complied with.

Unlike some civil law jurisdictions, the UKdoes not have forced heirship rules with the exception of the provision of thefamily law act 1975, which provides for certain persons to make a claim forreasonable financial provision.  Testamentaryfreedom is a hallmark of the wills making ability afforded to individuals as aright, however, not an absolute right even if the will is seen as capricious orspiteful to those who should have benefitted from it, would not by itself makea will invalid.The courts have always realized the venerableneed to be protected individuals when it was thought that they no longerpossess the mental ability to perform. The case of Banks v Goodfellow istherefore the leading case in which Cockburn CJ wrote his judgement and laiddown the test for assessing mental capacity.

The argument therefore with this test isthat it no longer meets the understanding of mental capacity in a modern day contemporarysociety that has developed in the field of mental health and clinicalneuroscience.The British Medical Association states thatcapacity is a concept which refers to a person ability or power to do somethingwhich may have legal consequences.1Mental capacity can be defined as one’scognitive ability to perform an act or make a decision but this cognitiveability is a matter of degree.

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2The law therefore, sets limits as to whenthe degree of disorder, illness or impairment has the ability to render such personunable to perform such acts or make decisions.The test, therefore, that was outlined byCockburn CJ is that the testator must –·        Understand the nature of his act(of making a will) and his effects. ·        Understand the extent of hisproperty in his estate·        Be able to comprehend andappreciate the claims to which he ought to give effect ·        And that no disorder of hismind shall poison his affections, of right or his will in disposing property.

Recognizing that capacity is not linear andmay fluctuate based on the type of disorder, illness or impairment. The firstquestion is whether the person had capacity at the time the decision was madeor the act carried out.The law takes a functional approach to thetest of capacity, meaning that there’re different threshold based on thecomplexity of the decision.

The fact there is not a single test for capacitythat can be used as an all purposed test; seems to be the issue with the law commission’sconsultation paper on wills and the issues is debated. At what point is thearea greyed as to when capacity should be assessed. Recognizing that mental capacity can bothbe retrospective and prospective, in that if the testator dies and the will ischallenged then it’s retrospective and the burden of proof is shifted to the propounder.In prospective the solicitor maybe put in a peculiar position if he does notact to assess capacity. In 2005 the Mental Capacity Act was legislated and camein force on 1st April 2007, to define circumstance in which livingpersons can and cannot make decisions for themselves this act is inapt todescribe a process of evaluating whether a past decision of a deceased personwas one which has the capacity to make. Solicitor therefore has to ensure as longas time is available that the Golden rule from Kenward v Adams is adhere to.This rule specifies that whenever there are instructions by the testator whosecapacity can be called into question that such a will should be witnessed by amedical practitioner.

For almost two hundred years the courts usedthe rational of a will as a check and balance to ensure the autonomy of thetestator. Banks v Goodfellow holds the view that capacity is not diagnosis boundand that no diagnosis is really required for capacity. Once it was provenlegally that the testator was of sound mind as to be capable of making a willwould be sufficient for the courts. The broad criteria noted in the introductionof this paper for test of capacity in Banks v Goodfellow states ” It isessential to the exercise of such a power that a testator shall understand thenature of the act and its effect; shall understand the extent of the propertyof which he is disposing; shall be able to comprehend and appreciate the claimsto which he ought to give effect to and with the view to the latter object thatno disorder of mind shall poison his affections pervert his sense of right or preventthe exercise of his natural faculties – that no insane delusion shall influencehis will in disposing of his property and bring about a disposal of it which ifthe mind had been sound would not have made it”. This test raises however, some verycomplicated issues for instance what does it mean to understand the extent ofone’s property? Or to comprehend and appreciate the claims to which one oughtto have given effect? Applying just the first part of this testhas left considerable room for a simple understanding among the courts. The supreme court of Canada in the case ofleger v Poirtier noted that the ability to provide rational responses to simplequestions was not the standard; but what was required was a sound and disposingmind that can comprehend the act of making a will’ the extent of one’s  property and those who might have a rightfulclaim upon the estate of the testator. When applying the test of Banks andGoodfellow in practice, courts have expanded what constitutes understanding toinclude higher level cognitive functioning with regards to the first limb ofthe test.

The Australian courts have acknowledged the differences between 1870and today and practically it has been suggested that understanding the extentof one’s property which is being disposed in a contemporary context merelyrequires the testator to understand the extent of property and its form in ageneral way. That the testator may not necessarly have an exact dollar figureas to his net worth but should know whether it’s a substantial amount or little.In a modern context of the complexities ofestate management it is actually the disposition itself that determines howmuch the testator needs to understand about the nature and extent of theestate.

  In regards to the third limb of the test Murphyv lamphier noted the importance of memory in the criteria for testamentary capacity.In this case the testator was not only to know who they were including but mustalso to remember and appreciate who they were excluding also and to be able toappreciate why.The most difficulty limb is the grandcriterion by which to judge that the mind is injured or destroyed is toascertain the state of the memory. In the case of Simpson v Gardner it wasstated that it was memory that affords us all the materials on which toexercise judgement, and to arrive at a conclusion or resolution. In the case of Sharp v Adam the court ofappeal held a will was invalid noting that although there were medical experts,the testator physician and the solicitor were each of the view that thetestator had capacity the court held otherwise.The testator’s lack of a clear rationalesuggested that he did not comprehend nor appreciate the claim of his daughters.This could be seen a very subjective test,one that can be used to push judicial rulings towards an outcome that the courtdeemed equitable in the circumstance. This lack of certainty has caused concernfor the law commission as they would like to see a clearer define of the law.

Henceif the purpose of the test for capacity is to ensure just outcomes more than toachieve certainty then the test would fair much wider than if the Banks vGoodfellow test was to be placed on a statutory footing as suggested by the lawcommission. One of the main questions for the law commissionwas their inquiry as to whether the test was a three- limb test or whether itwas a four-part test existed. – The Canadian bar review as well as the Austriallianjournal identified a four- limb test. That no disorder of mind poisons thetestator’s affections. In the case Ouderkirk v Ouderkirk the Canadiansupreme court held that a testator had suffered from a delusion of mind withregards to his wife’s fidelity. The court held that the delusion did affect thetestator’s mind so that he could not rationally take into consideration theinterest of the wife; in similar circumstances the banks v Goodfellow case dealtwith a testator who managed his assets capably and provided rationaldisposition in favour of the family member in which he demonstrated dispositiveconsistency. The test for capacity focused on his ability to understand andappreciate a number of relevant and uncomplicated factors.

The general principle that the autonomy ofa testator should be preserved for as long as possible can be found in the caseof Parker v Felgate that even after severe dementia it was noted that he stillpossessed mental capacity if he knew the will that he was signing was draftedin accordance with instructions given to his solicitor when he had capacity. Similarly,if a testator has lucid intervals in making his will the testator can still beheld to have capacity during such periods. It would seem to me that these exceptions areclearly to ensure that autonomy and values of self determination are affordedhence as much as possible escaping the need for intestacy. The concluding remarks of Cockburn CJreminds the court that the English law leaves everything to the unfettereddiscretion of the testator. Judges therefore have a painful task of presumptionsand counter presumptions to determine the validity of a will.

In the case of Sharp v Adams May LJ notedthat an irrational, unfair and unjust will must be upheld as long as thetestator has capacity to make a fair and rational one. Under Banks v Goodfellowthe testator must simply know and understand the claims, even if he subsequentlyignores them.The question therefore before the courtstherefore is not whether the will is a fair one in all circumstances but on theother hand if the provisions of a will are surprising that may be evidence inthe court’s assessment of whether the testator did have capacity.The MCA 2005 is in my view not that dissimilarin its test as it pertains to maintaining the value system of testators,however, the law commission has looked commented banks and goodfellow testlacks presumption as the MCA 2005 possesses. S 1(4) states A person is not tobe treated as unable to make a decision merely because he makes an unwisedecisions. This lack of presumption in the test was heavly critised by the lawcommission especially now that there is the MCA 2005. The UN convention on the Rights of Personswith Disabilities requires it members although the UK is not a signatory torecognise equal legal capacity to persons with disability, and to takeapporiate measures to provide access for such persons with disabilities, and totake measures to provide access for persons with disabilities to the supportthey may require in exercising their legal capacity.

Here individual autonomy and freedoms areemphasis and Article 12 seems to mandate a shift from substitute decisionmaking to one that is based on supported decision making. Section 16 of the MCA 2005 gives the courtof protection powers to make wills on behalf of the individual who is found tobe mentally incapable this technically delude that individual based of theirpower; however, there is a difference between those individuals who has clearlylost capacity and their only solution is a statutory will by the court ofprotection and those who are borderline in the understanding of testamentarycapacity. Juliet Brooks notes that the inherent expense and delays involved in theapplication to the Court of Protection means that it is better for all if thetestator can be helped to make their own will whilst they still have a residualamount of capacity.The statutory will would still stastify thetest in Banks and Goodfellow to excute their own wills, especially if the termsof their will are relatively simple and hence there can be both compliance withthe charter where individuals right to make their own will is preserved for aslong as possible.

The support gathered in Parker v Felgatewould dispel the criticism that support should be provided in exercise of legalcapacity. The MCA 2005 contains that’s once mental capacity is lost, thecorresponding legal capacity is immediately denied. It is argued by the law commission that thebest way to ensure compliance with the UN would be to introduce the presumptionof capacity as in the MCA and hence Banks v Goodfellow should be put on astatutory footing where presumption would be introduced in the test. This byitself might provide certainty and may enable person with a degenerative cognitivedisease to retain testatementary capacity for longer this however would notdispel the criticism of the functional approach nor enhance decision makingcapacity.There is however, a danger in making such presumption,that the protectionist requirement of paragraph 4 of the CRPD would not protectagainst undue influence for those who rely on the support of others and thereforesafeguards must also protect against undue influence. The law commission continue to move forcertainty within the law as opposed to the others who believe that the test workswell and if it is not broken why fix it. The longetto ivity of the test inBanks suggest to me that it performs well and is understood by those to whomhave to use it.

However, the law commission see the problems with the currentlaw and has suggested that reform is required. In the case of Re Walker is was determinedthat the test in Banks v Goodfellow continues to govern assessments oftestamentary capacity rather than the MCA test and this has caused concern withthe law commission who as any good law commission would see it necessary toprovide certainty on the issue of which the test applies.Autonomy is not a simple concept, those thatpossess legal capacity also possess capacity. John Coogan identified threetypes of autonomy ideal autonomy best desire autonomy and current autonomy.This categorisation is very instructive. For what has been describe above whena testator has borderline capacity would seem to fit within the best desireautonomy described by Coggon – that a rational will is one that fits with thetestator’s long term values and beliefs as opposed to an embodiment of a person’simmediate wishes without further reflection.

Most persons deliberate carefullyon the terms of a will in order to ensure it properly reflects their wishesinstead of acting on impulse without any detailed reflection. Therefore, if the test of Banks v Goodfellowis viewed as being a test for best desire autonomy as opposed to just being atest for capacity then the criticism against the test arguable has to benefitthe testator. If one is to review a list of leading casestudies it can be noted that the court has been aware of the different levelsof autonomy and hence it is not merely necessary for the testator to appreciatethe moral claims he ought to consider, but also to have made a conscious decisionto exclude. So in cases of Sharp v Adams the court of appeal used the aged testof banks v goodfellow and further expanded it stating ‘ if the human instinctand affections, or moral sense, become perverted by mental disease; if insanesuspicion, or aversion, take the place of natural affection.. it is obviousthat the condition of testamentary power fails.

The conclusion by the Court ofAppeal that he lacked testamentary capacity at the time of making his finalwill was influenced by his decision to exclude his daughters completely,instead of leaving them a small legacy as his solicitors suggested. Therefore, it can be concluded that thelack of a strong presumption in our current law enables it to reflect on the subtletiesinvolved, given the fact that many testators with signs of dementia may losethe ability to focus on their long term beliefs and instead be driven by immediatedesire and wishes. Any and all attempts to protect vulnerable testators mustnot inadvertently inhibit testamentary freedom, as to do so would put thetestator in no better position than isf a statutory will was made for them. Itis therefore, vital that the courts continue to use the aged old test and donot measure wills against an objective standard of values but a subjectiveanalysis to determine whether the wills accords with long term desires andwishes of testators and provide protection for vulnerable testators.   1 The British association and law Society, Assessment of mentalcapacity: (4th edition 2015 para 1.1)2 Law Commission report

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