It is the idea of the UK courts that a
person making a will should possess mental capacity and the freedom to disposed
of property as he or she sees fit. They also recognise the ambulatory nature of
 wills; which is capable of being changed
or revoked at anytime prior to the testator’s death.

The issue therefore is what can make a will
invalid by the courts and by what process a will can be challenge?  We would therefore look at the test developed
by the 1870 case of Banks v Goodfellow as well as the modern statute of the
Mental Capacity Act 2015, the UN charter on persons living with disabilities
and the law commission report of the wills.

For a testamentary will to be valid it must
comply with the fundamental requirements of a will, in that there must be:

Testamentary intention

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The testator must have capacity

The formalities set out in the
wills act 1837 must be complied with.

Unlike some civil law jurisdictions, the UK
does not have forced heirship rules with the exception of the provision of the
family law act 1975, which provides for certain persons to make a claim for
reasonable financial provision.

freedom is a hallmark of the wills making ability afforded to individuals as a
right, however, not an absolute right even if the will is seen as capricious or
spiteful to those who should have benefitted from it, would not by itself make
a will invalid.

The courts have always realized the venerable
need to be protected individuals when it was thought that they no longer
possess the mental ability to perform. The case of Banks v Goodfellow is
therefore the leading case in which Cockburn CJ wrote his judgement and laid
down the test for assessing mental capacity.

The argument therefore with this test is
that it no longer meets the understanding of mental capacity in a modern day contemporary
society that has developed in the field of mental health and clinical

The British Medical Association states that
capacity is a concept which refers to a person ability or power to do something
which may have legal consequences.1

Mental capacity can be defined as one’s
cognitive ability to perform an act or make a decision but this cognitive
ability is a matter of degree.2

The law therefore, sets limits as to when
the degree of disorder, illness or impairment has the ability to render such person
unable to perform such acts or make decisions.

The test, therefore, that was outlined by
Cockburn CJ is that the testator must –

Understand the nature of his act
(of making a will) and his effects.

Understand the extent of his
property in his estate

Be able to comprehend and
appreciate the claims to which he ought to give effect

And that no disorder of his
mind shall poison his affections, of right or his will in disposing property.

Recognizing that capacity is not linear and
may fluctuate based on the type of disorder, illness or impairment. The first
question is whether the person had capacity at the time the decision was made
or the act carried out.

The law takes a functional approach to the
test of capacity, meaning that there’re different threshold based on the
complexity of the decision. The fact there is not a single test for capacity
that can be used as an all purposed test; seems to be the issue with the law commission’s
consultation paper on wills and the issues is debated. At what point is the
area greyed as to when capacity should be assessed.

Recognizing that mental capacity can both
be retrospective and prospective, in that if the testator dies and the will is
challenged 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 not
act to assess capacity. In 2005 the Mental Capacity Act was legislated and came
in force on 1st April 2007, to define circumstance in which living
persons can and cannot make decisions for themselves this act is inapt to
describe a process of evaluating whether a past decision of a deceased person
was one which has the capacity to make.

Solicitor therefore has to ensure as long
as 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 whose
capacity can be called into question that such a will should be witnessed by a
medical practitioner.

For almost two hundred years the courts used
the rational of a will as a check and balance to ensure the autonomy of the
testator. Banks v Goodfellow holds the view that capacity is not diagnosis bound
and that no diagnosis is really required for capacity. Once it was proven
legally that the testator was of sound mind as to be capable of making a will
would be sufficient for the courts.

The broad criteria noted in the introduction
of this paper for test of capacity in Banks v Goodfellow states ” It is
essential to the exercise of such a power that a testator shall understand the
nature of the act and its effect; shall understand the extent of the property
of which he is disposing; shall be able to comprehend and appreciate the claims
to which he ought to give effect to and with the view to the latter object that
no disorder of mind shall poison his affections pervert his sense of right or prevent
the exercise of his natural faculties – that no insane delusion shall influence
his will in disposing of his property and bring about a disposal of it which if
the mind had been sound would not have made it”.

This test raises however, some very
complicated issues for instance what does it mean to understand the extent of
one’s property? Or to comprehend and appreciate the claims to which one ought
to have given effect?

Applying just the first part of this test
has left considerable room for a simple understanding among the courts.

The supreme court of Canada in the case of
leger v Poirtier noted that the ability to provide rational responses to simple
questions was not the standard; but what was required was a sound and disposing
mind that can comprehend the act of making a will’ the extent of one’s  property and those who might have a rightful
claim upon the estate of the testator.

When applying the test of Banks and
Goodfellow in practice, courts have expanded what constitutes understanding to
include higher level cognitive functioning with regards to the first limb of
the test. The Australian courts have acknowledged the differences between 1870
and today and practically it has been suggested that understanding the extent
of one’s property which is being disposed in a contemporary context merely
requires the testator to understand the extent of property and its form in a
general way. That the testator may not necessarly have an exact dollar figure
as to his net worth but should know whether it’s a substantial amount or little.

In a modern context of the complexities of
estate management it is actually the disposition itself that determines how
much the testator needs to understand about the nature and extent of the

In regards to the third limb of the test Murphy
v 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 must
also to remember and appreciate who they were excluding also and to be able to
appreciate why.

The most difficulty limb is the grand
criterion by which to judge that the mind is injured or destroyed is to
ascertain the state of the memory. In the case of Simpson v Gardner it was
stated that it was memory that affords us all the materials on which to
exercise judgement, and to arrive at a conclusion or resolution.

In the case of Sharp v Adam the court of
appeal held a will was invalid noting that although there were medical experts,
the testator physician and the solicitor were each of the view that the
testator had capacity the court held otherwise.

The testator’s lack of a clear rationale
suggested 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 court
deemed equitable in the circumstance. This lack of certainty has caused concern
for the law commission as they would like to see a clearer define of the law. Hence
if the purpose of the test for capacity is to ensure just outcomes more than to
achieve certainty then the test would fair much wider than if the Banks v
Goodfellow test was to be placed on a statutory footing as suggested by the law

One of the main questions for the law commission
was their inquiry as to whether the test was a three- limb test or whether it
was a four-part test existed. – The Canadian bar review as well as the Austriallian
journal identified a four- limb test. That no disorder of mind poisons the
testator’s affections.

In the case Ouderkirk v Ouderkirk the Canadian
supreme court held that a testator had suffered from a delusion of mind with
regards to his wife’s fidelity. The court held that the delusion did affect the
testator’s mind so that he could not rationally take into consideration the
interest of the wife; in similar circumstances the banks v Goodfellow case dealt
with a testator who managed his assets capably and provided rational
disposition in favour of the family member in which he demonstrated dispositive
consistency. The test for capacity focused on his ability to understand and
appreciate a number of relevant and uncomplicated factors.

The general principle that the autonomy of
a testator should be preserved for as long as possible can be found in the case
of Parker v Felgate that even after severe dementia it was noted that he still
possessed mental capacity if he knew the will that he was signing was drafted
in 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 be
held to have capacity during such periods.

It would seem to me that these exceptions are
clearly to ensure that autonomy and values of self determination are afforded
hence as much as possible escaping the need for intestacy.

The concluding remarks of Cockburn CJ
reminds the court that the English law leaves everything to the unfettered
discretion of the testator. Judges therefore have a painful task of presumptions
and counter presumptions to determine the validity of a will.

In the case of Sharp v Adams May LJ noted
that an irrational, unfair and unjust will must be upheld as long as the
testator has capacity to make a fair and rational one. Under Banks v Goodfellow
the testator must simply know and understand the claims, even if he subsequently
ignores them.

The question therefore before the courts
therefore is not whether the will is a fair one in all circumstances but on the
other hand if the provisions of a will are surprising that may be evidence in
the court’s assessment of whether the testator did have capacity.

The MCA 2005 is in my view not that dissimilar
in its test as it pertains to maintaining the value system of testators,
however, the law commission has looked commented banks and goodfellow test
lacks presumption as the MCA 2005 possesses. S 1(4) states A person is not to
be treated as unable to make a decision merely because he makes an unwise
decisions. This lack of presumption in the test was heavly critised by the law
commission especially now that there is the MCA 2005.

The UN convention on the Rights of Persons
with Disabilities requires it members although the UK is not a signatory to
recognise equal legal capacity to persons with disability, and to take
apporiate measures to provide access for such persons with disabilities, and to
take measures to provide access for persons with disabilities to the support
they may require in exercising their legal capacity.

Here individual autonomy and freedoms are
emphasis and Article 12 seems to mandate a shift from substitute decision
making to one that is based on supported decision making.

Section 16 of the MCA 2005 gives the court
of protection powers to make wills on behalf of the individual who is found to
be mentally incapable this technically delude that individual based of their
power; however, there is a difference between those individuals who has clearly
lost capacity and their only solution is a statutory will by the court of
protection and those who are borderline in the understanding of testamentary
capacity. Juliet Brooks notes that the inherent expense and delays involved in the
application to the Court of Protection means that it is better for all if the
testator can be helped to make their own will whilst they still have a residual
amount of capacity.

The statutory will would still stastify the
test in Banks and Goodfellow to excute their own wills, especially if the terms
of their will are relatively simple and hence there can be both compliance with
the charter where individuals right to make their own will is preserved for as
long as possible.

The support gathered in Parker v Felgate
would dispel the criticism that support should be provided in exercise of legal
capacity. The MCA 2005 contains that’s once mental capacity is lost, the
corresponding legal capacity is immediately denied.

It is argued by the law commission that the
best way to ensure compliance with the UN would be to introduce the presumption
of capacity as in the MCA and hence Banks v Goodfellow should be put on a
statutory footing where presumption would be introduced in the test. This by
itself might provide certainty and may enable person with a degenerative cognitive
disease to retain testatementary capacity for longer this however would not
dispel the criticism of the functional approach nor enhance decision making

There is however, a danger in making such presumption,
that the protectionist requirement of paragraph 4 of the CRPD would not protect
against undue influence for those who rely on the support of others and therefore
safeguards must also protect against undue influence.

The law commission continue to move for
certainty within the law as opposed to the others who believe that the test works
well and if it is not broken why fix it. The longetto ivity of the test in
Banks suggest to me that it performs well and is understood by those to whom
have to use it. However, the law commission see the problems with the current
law and has suggested that reform is required.

In the case of Re Walker is was determined
that the test in Banks v Goodfellow continues to govern assessments of
testamentary capacity rather than the MCA test and this has caused concern with
the law commission who as any good law commission would see it necessary to
provide certainty on the issue of which the test applies.

Autonomy is not a simple concept, those that
possess legal capacity also possess capacity. John Coogan identified three
types of autonomy ideal autonomy best desire autonomy and current autonomy.
This categorisation is very instructive. For what has been describe above when
a testator has borderline capacity would seem to fit within the best desire
autonomy described by Coggon – that a rational will is one that fits with the
testator’s long term values and beliefs as opposed to an embodiment of a person’s
immediate wishes without further reflection. Most persons deliberate carefully
on the terms of a will in order to ensure it properly reflects their wishes
instead of acting on impulse without any detailed reflection.

Therefore, if the test of Banks v Goodfellow
is viewed as being a test for best desire autonomy as opposed to just being a
test for capacity then the criticism against the test arguable has to benefit
the testator.

If one is to review a list of leading case
studies it can be noted that the court has been aware of the different levels
of autonomy and hence it is not merely necessary for the testator to appreciate
the moral claims he ought to consider, but also to have made a conscious decision
to exclude. So in cases of Sharp v Adams the court of appeal used the aged test
of banks v goodfellow and further expanded it stating ‘ if the human instinct
and affections, or moral sense, become perverted by mental disease; if insane
suspicion, or aversion, take the place of natural affection.. it is obvious
that the condition of testamentary power fails. The conclusion by the Court of
Appeal that he lacked testamentary capacity at the time of making his final
will 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 the
lack of a strong presumption in our current law enables it to reflect on the subtleties
involved, given the fact that many testators with signs of dementia may lose
the ability to focus on their long term beliefs and instead be driven by immediate
desire and wishes. Any and all attempts to protect vulnerable testators must
not inadvertently inhibit testamentary freedom, as to do so would put the
testator in no better position than isf a statutory will was made for them. It
is therefore, vital that the courts continue to use the aged old test and do
not measure wills against an objective standard of values but a subjective
analysis to determine whether the wills accords with long term desires and
wishes of testators and provide protection for vulnerable testators.




1 The British association and law Society, Assessment of mental
capacity: (4th edition 2015 para 1.1)

2 Law Commission report


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