In a recent case of James v James and others, High Court Judge HHJ Paul Mathews was concerned with issues of testamentary (ability to understand a will) capacity where a Will was being challenged and the test for capacity was defined in the Mental Capacity Act 2005.

alexander cockburn re willIn general where a Testator (a person who has made a Will) has died and the question of his mental capacity or testamentary capacity to make a valid Will arises, the law is stated in an ancient case of Banks v Goodfellow 1870 by Sir Alexander Cockburn, Lord Chief Justice as follows, in old English: “it is essential that a testator should understand the nature of his act and its effects, shall understand the extent of the property which is disposing, shall be able to comprehend and appreciate the claims to which he ought to give effect, and that notice of disorder  of mind shall poison his affections …”

This test was applied well into the 21st century, but more recently the Mental Capacity Act 2005 (“the Act”) set out new tests to determine mental capacity for a person who is alive, but no longer possibly had capacity.

Accordingly, was the Court entitled to use the tests in the Act to determine mental capacity in the case of a person who had died but who possibly lacked capacity at the time his Will was made?

In particular, one of the principles of the Act is that a person must be assumed to have capacity unless it is established that he lacks capacity. A person would also lack capacity if he was unable to decide for himself in relation to the matter because of an impairment of or disturbance in the functioning of the mind or brain.

One of the tests to see if a person has that capacity is, that they would lack capacity in relation to the matter, if at the material time they were unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain.

mental health act re willThe Act defined further tests by way of clarification as to when people would be considered unable to make decisions for themselves. These are different tests to that in Banks v Goodfellow 1870.

The argument in the case of James v James and others was that as Parliament had now enacted an Act in 2005, it intended that the Courts should use the tests in the Act to determine capacity, even where a person had died but had made a Will and possibly lacked capacity, and not use the old law.

The tests in the Act have been used on many occasions by the Court of Protection in exercising one of its functions regarding the contents of a statutory Will for a person who now lacks capacity but is alive. So, in this case, there was a reasonable argument that it had relevance to determining testamentary capacity for a person who had died and possibly lacked testamentary capacity.

In a very clear and interesting Judgment, the Judge held that the Act was concerned with assessing the mental capacity of living persons and the manner of making decisions thereafter on their behalf when judged by the terms of the Act that they lack capacity.

“… It is solely in pursuing that (sic) purpose that it deals with (amongst other things) the arising of the power of the court to make a Will for a living person who has been found not to possess capacity. It does not follow from this that the test for judging capacity retrospectively in relation to a will already made must also be governed by the same principles. The two things are different, and the latter does not obviously fall within the scope of the Act as expressed through its provisions.”

So, according to the Judge’s interpretation, a different test of capacity i.e. testamentary capacity will apply when trying to judge retrospectively what was the Testator’s state of mind when he made a Will and has now died. This will be different to the test that the Court of Protection will need to apply in the case of the living person who possibly has lost capacity to determine what the contents of their Will should be.

So, the old case of Banks v Goodfellow is still followed in testamentary capacity cases. A true case of an old case that still stands “the test of time”.

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