Testamentary Capacity Reform

Abstract

This article aims to examine whether the current law on testamentary capacity would benefit from reform. Doctrinal analysis will explore how the law on testamentary capacity has developed over the last few centuries. This analysis will then determine where the threshold for testamentary capacity currently is, with a particular focus on how effectively it balances upholding testamentary freedom and protecting vulnerable testators.

After identifying the position of the threshold, this article will evaluate judicial and academic criticisms of the current law on testamentary capacity. The five key criticisms are: structural ambiguity; linguistic ambiguity; incompatibility with modern neuroscience, and procedural ineffectiveness and outdatedness.

The article will then evaluate two existing reform proposals, namely the adoption of the Mental Capacity Act 2005 and the statutory codification of the current common law test. This evaluation will focus on whether the reform proposals solve the issues of the current law, and then consider whether they establish a threshold that provides a better balance between upholding testamentary freedom and protecting vulnerable testators.

This article will determine that the reform proposals are less effective than the current law. However, by incorporating certain elements of the two reform proposals and the existing law, this article will propose a unique method of reform.

This new proposal will statutorily codify the current common law test but provide a set of factors for consideration during application of the test. It will also import a starting presumption of capacity that can only be displaced in a specific scenario involving vulnerable testators. These procedural and structural changes will be recommended on the basis that they strike the optimum balance between upholding testamentary freedom and protecting vulnerable testators.

Chapter 1: Introduction

Testamentary capacity, a concept that has existed since ‘time immemorial in England’,[1] dictates that there is a requisite mental competence for a will to be valid. The test for testamentary capacity has essentially remained the same since 1870, when it was formulated in Banks v Goodfellow.[2] Cockburn CJ set out the test, stating that it is:

‘essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; 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; and, with a view to the latter object, that no disorder of the 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 been made.’[3]

The Banks test must distinguish between those who have and those who lack the capacity to make a will by establishing a threshold. Brian Sloan states that cases concerning a lack of testamentary capacity can be separated into two categories. The first comprises of cases where there was a ‘failure of the mind’ to attain the minimum requisite testamentary capacity (which is to ‘entertain the notion of making a will’); this is the case for those born ‘with very limited mental capacity’.[4] For such cases, a statutory will is the only option. This is where the testator’s representatives can make a will through the Court of Protection on behalf of the testator,[5] in what they deem are his ‘best interests’.[6] The second category (hereafter called “vulnerable testators”) consists of those with mental impairment, which can derive from factors such as ‘dementia, delirium, physical illness, and psychosis’.[7] Vulnerable testators can be described as having borderline or declining capacity.

Ideally, these vulnerable testators would make their own wills, and exercise their testamentary freedom, the concept that the testator has autonomy over the distribution of their property after death. Testamentary freedom, as stated by Cockburn CJ, is one of the most ‘valuable’ principles of English property law.[8] The desire to promote testamentary autonomy is also apparent in the UN Convention on the Rights of Persons with Disabilities (CRPD),[9] a treaty of which the UK is a signatory to;[10] art 12(2) advocates for States to recognise ‘that persons with disabilities enjoy legal capacity on an equal basis with others’.[11] The testamentary freedom granted by wills is particularly emphasised by the lack of nuance in current intestacy laws, described by the Law commission as a ‘blunt instrument’; an example of such bluntness is a lack of entitlement for cohabitees when their partner dies intestate.[12]

These factors suggest that the threshold for testamentary capacity should be low, as to maximise the number of vulnerable testators who can exercise their testamentary rights. However, an excessively low threshold presents two problems.

Firstly, vulnerable testators are susceptible to undue influence from others, and any affected will would clearly not be an expression of the testator’s autonomous, authentic self. Lowering the threshold would risk more potential incidences of undue influence, which would then require ‘appropriate and effective safeguards’ to protect against it,[13] particularly considering that, as acknowledged by the Law Commission, it is ‘currently too difficult to challenge a will on the basis of testamentary undue influence’.[14] Secondly, vulnerable testators can potentially end up producing a will that is not an expression of their authentic self, but one that that is a manifestation of their mental impairment, a scenario which will be a particular focus of this article.

Considering these issues, the ‘imprecise divide’ at which testators gain or lose capacity bears great importance;[15] the threshold should strike a balance between upholding testamentary freedom and protecting vulnerable testators from undue influence and the effects of their own impairments.

This Article will firstly explain the Banks test and then evaluate its criticisms to gauge the current positioning of the threshold. It will then evaluate potential methods of reform, and whether they can strike a better balance between upholding testamentary freedom and protecting vulnerable testators. The article will conclude with an original proposal from the author that seeks to strike the best balance possible.  

Chapter 2: The Banks Test Explained

2.1. Three or Four Limbs?

Before analysing the elements of the Banks test, it is worth noting that there has been debate as to whether the test comprises of three or four limbs. This stems from Cockburn CJ’s use of the phrase ‘and, with a view to the latter object’ that precedes the fourth limb.[16] As Penny Reed writes, such phrasing makes it ‘tempting to consider that the fourth limb… simply explains the third’.[17] This distinction could have the potential to alter the ‘scope of the test’.[18]

In Hawes v Burgess,[19] a three-limb approach was used, where the fourth limb was deemed to be a ‘sub-question’ of the third.[20] However, the test was previously divided into four limbs in Sharp v Adam,[21] a decision echoed in Kostic v Chaplin,[22] where it was emphasised that the fourth limb is ‘not… a mere sub-set’ of the third, and that all four are completely ‘separate’.[23] Subsequently, a testator would need to satisfy each limb in order to have capacity.[24] This decision was supported by the Law Commission, who reasoned that an independent fourth limb is necessary ‘to account for illnesses affecting a testator’s personality rather than his or her cognitive ability’.[25]

Since Sharp v Adam, the Banks test has usually been applied in its four-limb format, with the aforementioned exception of Hawes v Burgess, typically using the exact wording of the original Banks test but with sub-paragraphing, inserted in from Sharp v Adam  ‘for ease of reference’.[26] A typical example of how the test has been set out in contemporary cases is:

The requirements are:

‘…that a testator [a] shall understand the nature of the act and its effects; [b] shall understand the extent of the property of which he is disposing; [c] shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, [d] that no disorder of the 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 been made.’[27]

2.2. Analysis of the Limbs

2.2.A. First Limb

In terms of the specifics of the first limb, the testator must firstly understand the nature of the act, which means that he must be able to understand that he is making a will which can be revoked or changed until it takes effect on his death.[28] He must also understand its effects. In Simon v Byford,[29] Lewison LJ distinguished between two types of effects, namely ‘immediate consequences’ and ‘collateral consequences’,[30] holding that only immediate consequences must be understood. As Frost et al summarise, this means the testator does not need to understand the ‘implications for the family’ caused by the will, but rather only ‘what it disposed, on what terms, and to whom’.[31] This distinction is illustrated in Simon, where the testatrix made dispositions concerning shares in a company amongst her children. She understood the immediate consequences, namely that her shares were being equally distributed amongst her children,[32] but did not appreciate the collateral consequences,[33] namely that such disposition would ‘create voting deadlock among shareholders’.[34] Since she understood the immediate consequences, the first limb was satisfied.

2.2.B. Second Limb

The second limb requires the testator to understand the extent of their property. This does not mean, as expressed in Waters v Waters,[35] that the testator requires ‘a specific and accurate knowledge of every atom of his property’;[36] instead he requires a ‘broad appreciation’ of the range of the assets.[37]  However, if, as in Wood v Smith,[38] there is serious confusion on the testator’s part leading him to persistently assign an unrealistic value to his assets,[39] the second limb may not be fulfilled.

2.2.C. Third Limb

The third limb requires the testator to have the capacity to understand and appreciate the claims ‘to which he ought to give effect’.[40] This involves the testator understanding these relationships, assessing the ‘relative value’ of them, and making a ‘reasoned judgement’ on how his estate should be distributed on this basis.[41]

When considering which claims the testator ‘ought’ to appreciate, Cockburn CJ accepted that the ‘common sentiments of mankind’ will lead to a testator ‘naturally’ wanting to distribute his property among his ‘children or nearest relatives’.[42] However, due to the ‘unfettered’ autonomy afforded to the testator by English law, Cockburn CJ believed the claims on a testator’s bounty should not be seen to be restricted solely to these close kindred.[43]

By enabling the testator to exercise ‘the power of rewarding’ anyone he may deem fit, Cockburn CJ believed it would result in a ‘better’ testamentary disposition of property that was ‘more accurately adjusted to the requirements of each particular case’;[44] essentially, the testator would clearly know best about who deserves his bounty. This, Cockburn CJ continued, would lead to a far more desirable outcome than any ‘stereotyped[,] inflexible’ or fixed statutory entitlement could ever provide,[45] such as the ‘forced heirship’ rules followed by many of England’s ‘European neighbours’ whereby ‘certain relatives are entitled to inherit on the basis of kinship alone, regardless of the deceased’s wishes’.[46]

He follows by stating some (non-exhaustive) factors that could be taken into account when determining which claims ought to be considered: ‘friendship’, ‘faithful service’, the testator’s desire to ‘reward[…] dutiful and meritorious conduct’ and his desire give to those who ‘stand in greater need of assistance’.[47]

Importantly, the third limb does not expect the testator to actually make provisions for all or any potential beneficiaries. Instead, it focuses on whether he could understand all of his relevant relationships and assess ‘the nature of their [corresponding] claims’.[48] It follows that even if a testator disinherits anyone ‘out of capricious, frivolous, mean or even bad motives’,[49] the third limb would still be satisfied as long as he could understand his relationship with the individual and is capable ‘of deliberately forming an intelligent purpose of excluding them from any share of his property’.[50]

A feature shared by both the second and third limb is the proportionate relationship between the required understanding and the complexity of the testator’s situation. Such relationship was first introduced In the Estate of Park,[51] whereby the court implied that a higher mental competence would be required to satisfy a complicated will than what would be required in a simple will.[52] This idea was applied to the second and third limb in subsequent caselaw; accordingly, when the will is complex and the testator has a ‘complex estate’,[53] or where there are complex family circumstances that lead to ‘subtle’ calls upon the testator’s bounty, the testator will require a ‘greater degree of understanding’ to satisfy the second and third limbs.[54] This proportionate relationship is all the more pertinent when considering that both estates, with the increasing use of ‘a potentially complicated series of [financial] mechanisms… to ensure wealth management’,[55] and familial relationships, which have encountered a ‘shift away from the typical family unit’,[56]  have become more complex over the last few decades.

2.2.D. Fourth Limb

To explain the specific requirements of the fourth limb, it is worth setting out how it developed into its current form. Prior to Banks, the judicial attitudes towards disorders of the mind can be summarised by the ‘indivisibility of the mind’ doctrine introduced in Waring v Waring,[57] and used in Smith v Tebbitt.[58] This doctrine had held that since there is ‘no security’ behind the idea that an act by a partially insane individual is free from their ‘lurking delusion’ or ‘real unsoundness’,[59] said individual ‘is not in law capable of making a will’.[60]

Banks concerned a testator called John Banks, who had a delusion that a dead man named Featherstone Alexander still ‘pursued and molested him’ through use of ‘devils or evil spirits’.[61] If Cockburn CJ had applied the indivisibility of mind doctrine, he would have certainly concluded that the testator’s will was invalid. Instead, Cockburn CJ declared that as long as the delusion ‘neither exercises nor is calculated to exercise any influence on the particular disposition’ of the will,[62] the will would be valid.

He expanded this idea to not just include delusion; he stated that ‘a degree or form of unsoundness which neither disturbs the exercise of the faculties necessary for [making a will] nor is capable of influencing the result’ ought not to deprive the individual of testamentary capacity.[63]

To provide clarification over which faculties are necessary for will-making, Cockburn CJ provided a list detailing the ‘distinct’ faculties of the mind: ‘[t]he senses, the instincts, the affections, the passions, the moral qualities, the will, perception, thought, reason, imagination, memory’.[64] He then continued that, despite so many faculties, as long as the impairment generally leaves the ‘affections, the moral sense, and the general power of the understanding unaffected, and is wholly unconnected with the testamentary disposition’,[65] testamentary capacity should not be taken away. 

By compartmentalising the mind into distinct faculties, Cockburn CJ could finally override the indivisibility of mind doctrine. As Juliet Brook writes, Cockburn CJ shifted the focus from the ailment itself to the ‘effect of the ailment’,[66] and specifically whether the effect of the ailment was the impairment of one of these relevant faculties. Subsequently, the requirement of the fourth limb is that a testator should not have a mental disorder that affects his relevant moral or intellectual faculties such that the terms of his will are affected or altered.

2.3. How the Banks Test Changed Judicial Views towards Capacity

Through his test, and in particular the fourth limb, Cockburn CJ unshackled traditional judicial attitudes towards mental disorders – a diagnosis of a mental disorder did not define a person’s intellectual or moral capacity,[67] and in particular, was not conclusive in determining their testamentary capacity; capacity had become ‘state-dependent, not trait-dependent’.[68] His detailed elucidation on what faculties of the mind were relevant to testamentary capacity allowed a more nuanced analysis of how the mental disorder affects testamentary capacity, and this was a monumental step for the courts in allowing a greater accessibility to the principle of testamentary freedom enshrined in English law. Vitally, this nuance also provided the relevant ‘limited circumstances in which this freedom can be curtailed’,[69] meaning that the balance between upholding testamentary freedom and ensuring that a mental disorder is not compromising a testator’s authentic testamentary wishes had been better than ever before.

Having analysed the Banks test, it is necessary to acknowledge how it is applied practically in a litigation scenario. The larger procedural sequence of which Banks is a part always starts with the burden of proof on the propounder of the will.

2.4. Larger Procedural Sequence

In Re Key,[70] Briggs J summarised the procedural sequence applied in courts when assessing testamentary capacity:

(i) While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face, then the court will presume capacity.

(ii) In such a case the evidential burden then shifts to the objector to raise a real doubt about capacity.

(iii) If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity none the less.[71]

Importantly, the standard of proof required to shift the burden is the balance of probabilities, where the individual must prove that what they are advocating for is more likely to have happened than not.

The Banks test is not explicitly involved in the first stage, where only rationality and formalities are analysed. However, in the second stage, the objector needs to provide evidence pertaining to the limbs of the Banks test that raise, on the balance of probabilities, a real doubt that the testator did not satisfy one or more of these limbs. If this occurs, the burden would re-shift to the propounders, who can establish capacity by providing evidence that suggests it is more likely that not that the testator satisfied all four limbs.

2.4.A. Forms of Evidence

Although evidence as to capacity can come in many forms, perhaps one of the stronger forms is compliance with the Golden Rule. This rule, created by Templeman J in Kenward v Adams[72] then restated in Re Simpson,[73] was that ‘in the case of an aged testator or a testator who has suffered serious illness’, the will ‘ought to be witnessed or approved by a medical practitioner’ who is satisfied with the testator’s capacity, and records his findings. However, the rule ‘does not constitute a rule of law’;[74] it is ‘no more than prudent guidance for a solicitor’,[75] to ‘assist in the avoidance of disputes’.[76] Accordingly, non-compliance with the rule does not prove incapacity, just as ‘meticulous compliance’ with it does not prove capacity; nevertheless, it is worth noting that evidence of the latter may require ‘very persuasive evidence to enable the court to dislodge that conclusion’.[77]

Another strong piece of evidence is the will draftsman’s contemporaneous evidence. In Hawes v Burgess, the Court of Appeal stated that ‘the courts should not readily upset, on the grounds of lack of mental capacity, a will that has been drafted by an experienced independent lawyer’.[78] Contemporaneous evidence, strictly speaking, is limited to the day of execution (although an exception was created in Parker v Felgate,[79] as discussed below); however, if no evidence is available on the day of execution, evidence closest in time to the day will be used. Therefore, the strength of the contemporaneous evidence is dependent on how close it is to the day of execution, and whether the draftsman ‘recorded fully his observations and conclusions’.[80]

2.4.B. Other Key Presumptions and Rules

The procedural sequence ‘may also be affected by the presumption of the continuance of a mental state’,[81] as per Smith v Tebbitt.[82] Therefore, if there is evidence proving that the testator had capacity prior to and relatively close to the day of execution, it will be presumed that this competence continued to the time of execution; alternatively, if there was proof of serious mental illness that was capable of affecting the faculties relating to making a will prior to the day of execution, there would be a presumption that the ‘illness continued so that the testator lacked capacity at the time of the execution’.[83]

Another key rule that has been incorporated into the Banks test is in Parker v Felgate. The principle applies when a competent testator gives instructions to make his will but loses capacity before execution. The will is valid if the instructions were given to a solicitor, the solicitor prepares in in ‘accordance with those instructions’, and the testator executed the will while understanding he was executing his instructed will.[84] This rule forms an important exception ‘to the rule that the testator must be mentally competent when the will is executed’.[85]

Having considered its impressive relevance to modern-day thinking and practicality in litigation circumstances, it is easy to forget that the original test is almost 150 years old. Since then, there have been unprecedented changes in a variety of other fields that have affected how testamentary capacity is interpreted, perhaps none more so than ‘developments in clinical neuroscience’.[86]  The next chapter will evaluate specific criticisms of the Banks test and the procedural sequence of which it forms a part.

Chapter 3: Evaluating Criticisms of the Banks Test

3.1. Clarity of Structure and Language

3.1.A. Structural Ambiguity

One criticism of the Banks test is its ambiguity over whether there are three or four limbs; this ambiguity was highlighted by the Law Commission as an area that should be clarified in any potential reform.[87] Brook expresses how such ambiguity, and resultant ‘demotion’ of the fourth limb, possibly was the cause of the Court of Appeal being ‘unable to express a concluded view on the issue of capacity’ in Hawes v Burgess.[88] Clearly, if such ambiguity is causing inconsistencies in the application of the test and negatively affecting judicial outcomes, it is a flaw.

However, virtually all caselaw and academic commentary since Hawes v Burgess has highlighted the importance of the fourth limb as a separate entity and applied it as such.[89] As May LJ had put earlier in Sharp v Adam, the first three limbs predominantly focus on cognitive requirements, whereas the fourth limb also provides analysis of mood too.[90] The Law Commission similarly concluded that a separate fourth limb was necessary to ‘account for illnesses affecting a testator’s personality rather than his… cognitive ability’,[91] with Brook adding that the fourth limb uniquely provides ‘an element of objectivity’ crucial in determining whether the will reflected the testator’s ‘authentic self’ or his ‘mental impairment’.[92] Frost et al further declared that Sharp v Adam’s four-limb approach ‘should be regarded as the authoritative statement’.[93] Overall, any potential ambiguity, from an academic point of view, has been largely clarified.

3.1.B. Linguistic Ambiguity

Another criticism is the test’s ambiguity over its use of the word “understand”. The first two limbs state the testator ‘shall understand’ the nature (and effects) of the will and extent of property respectively, whereas the third limb requires that the testator need only to ‘be able to comprehend’ (or understand) the claims he ought to give effect.[94] There appears to be two types of understanding: actual understanding and the ability to understand.

If actual understanding is what should be assessed in the first two limbs, this presents two issues. Firstly, proving actual understanding in every case will be incredibly difficult considering that the testator is deceased; as Lord Penzance aptly put in Atter v Atkinson,[95] to require proof of understanding would ‘upset half the wills in the country’.[96] Secondly, assessing actual understanding is not the remit of testamentary capacity, but rather knowledge and approval. Moreover, as Sloan expresses, the word ‘“capacity” suggests an ability’ as opposed to any particular ‘state of affairs’.[97] Therefore, capacity is the ability to understand with appropriate assistance, distinct from actual understanding.

In any case, there is overwhelming judicial consensus that the Banks test does interpret understanding in the first two limbs to be the ability to do so. Cockburn CJ himself cited ‘with approval’[98] the cases of Greenwood v Greenwood[99] and Harwood v Baker[100] in the Banks judgment;[101] both cases specifically assess a testator’s understanding of his will and extent of property with the ability,[102] or ‘power of summoning [one’s] mind’,[103] to do so. More recently, Hoff v Atherton[104] stated that using actual understanding would be an ‘over-literal approach to a judicial statement’,[105] with Simon v Byford adding that understanding should not be ‘equated’ with a ‘test of memory’, but rather the ‘potential to understand’.[106] Overall, the position over understanding, at least from an academic point of view, is clear – it is the ability to understand.

3.2. Accessibility

As demonstrated by the explanation of the test, there is a lot more to the Banks test than just the limbs themselves; there are the decades of caselaw aiding with interpretation as well as a lot of other dicta from the judgment that are central to the decision. This, from a legal point of view, is a benefit, allowing the test for capacity to be nuanced.

However, such complexity creates an issue when it comes to accessibility. As the Law Commission states, ‘given that many people write their own wills without the benefit of advice from a solicitor’, perhaps due to the ease at which will templates can be printed off the internet, ‘accessibility is particularly important in the context of wills’.[107] Undoubtedly, the ambiguities discussed above that have been resolved by caselaw will still be an issue for the layperson.

Moreover, Banks is not linguistically compatible with today’s views towards disability and capacity. As Sloan asserts, the judgment uses ‘old-fashioned, potentially offensive and value-laden language’ with words such as “insane delusion”, “pervert” and “poison”.[108] The test’s use of the phrase “sense of right” also could unintentionally misdirect the average person to believe that certain people ought to be left out the will.

Overall, the test is a small piece of text in amongst a 23-page judgment that is nearly 150 years old, written with some old-fashioned, offensive, and potentially unclear turns of phrasing;[109] in such format, the Banks test is clearly inaccessible to the average person making a will without a solicitor.

3.3. Compatibility with Neuroscience

A further criticism of the Banks test is that, despite its ‘simplicity and common sense’ allowing it to ‘with[stand] the test of time’,[110] it is not scientifically nuanced enough to accommodate modern neuroscience.[111]

Shulman et al write that, due to fact that Banks was based ‘on an instance of psychosis’ nearly 150 years ago, it does not define the various other ‘subtle cognitive influences on testamentary capacity’.[112] For example, one of these ‘ever widening range of circumstances now regarded as sufficient at least to give rise to a risk of mental disorder’ was found to be the effects of bereavement in Re Key.[113]

Another mental impairment that is being increasingly cited in modern challenges to wills is delirium;[114] however, as Sloan states, dementia ‘is by far the most common’ mental impairment cited in probate actions regarding capacity.[115] This is no surprise considering that there are currently 850,000 dementia sufferers in the UK, with 20% of those between 85 and 89, and 40% of those above 95, being affected.[116]

It could be argued that dementia was actually addressed by Cockburn CJ when he discussed the ‘unsoundness of mind arising from… the decay of advancing age’.[117] However, it is important to note that dementia is not part of the normal aging process,[118] despite its concentration in the elderly.

In order to assess whether the Banks test is capable of recognising the effects of dementia on testamentary capacity, the specific effects of dementia on cognitive functioning must be explored. Dementia is the umbrella term for the ‘impaired ability to remember, think, or make decisions that interferes with doing everyday activities’.[119]  With dementia, the individual typically starts to experience deficits in working memory.[120] The working memory is a vital part of ‘executive functioning’, which is ‘fundamental’ to testamentary capacity as it allows the evaluation of relevant information to reach conclusions.[121] Therefore, this deficit in working memory interferes with normal executive functioning, causing the individual to potentially misperceive and incorrectly evaluate their close relationships.[122] These changes in mental status and behaviour are known as “behavioural and psychological symptoms of dementia” (“BPSD”).[123] BPSD often results in sufferers having ‘suspicion, doubt or… overt paranoia’ regarding ‘previously trusted family members’.[124]

As dementia progresses, ‘old memories’, 'knowledge, and experiences built over years’ that would otherwise ‘stay intact’ may also get discarded.[125] This, in combination with the other symptoms, can lead to what John Coggon describes as current desire autonomy,[126] whereby the individual acts on their ‘immediate wishes and inclinations’ instead of their more ‘long-term values and wishes’ (best desire autonomy).[127]

Acting on current desire autonomy results in dementia sufferers being ‘prone to making shallow, superficial and impulsive judgements',[128] often at the expense of their closest family members or friends. If testamentary actions are based on these judgements, they are clearly not an expression of the testator’s authentic self, but rather the expression of their mental impairment.

Having analysed the potential effects of dementia on capacity, it must be investigated whether the Banks test is equipped to deal with these effects. Although the test itself only makes a specific reference to ‘insane delusions’ and a general reference to disorders of the mind,[129] there is a particular section in Cockburn’s later elucidation of the fourth limb that is surprisingly applicable to some effects faced by dementia sufferers. He states the ‘the condition of the testamentary power fails’ when the mental disorder causes ‘aversion’ to ‘take the place of natural affection’.[130] This directly relates to the fact that aversions of natural affections are some of the ‘most common cognitive changes’ of dementia,[131] and can be aligned with the effects of BPSD, particularly how sufferers can start to strongly dislike close family members or friends that they were previously very fond of.

Moreover, the idea that the testator’s ‘human instincts’ become ‘perverted by mental disease’ is comparable to the idea that, due to the progressive degradation of long-term memory, dementia sufferers often transition from ‘best desire autonomy’ to ‘current desire autonomy’ and lose their typical beliefs that they held throughout life.

Furthermore, Cockburn CJ’s extensive list of faculties of the mind (listed in Chapter 2.2.D) succinctly captures the specific intellectual and moral faculties potentially involved in testamentary disposition.[132] Clearly, these descriptions do not have the nuance of modern neuroscience; for example, it does not relate which part of the brain affects which intellectual faculty or moral faculty. However, the key point is these faculties will always be pertinent when assessing capacity. By focusing on the relevant potential effects that a mental disorder may have on testamentary capacity, Cockburn CJ has successfully avoided the need to actually address the general physiological or biological causes of any particular mental disorder. In this way, it can be argued that the Banks test does, to a sufficient level, accommodate modern neuroscience when assessing testamentary capacity.

3.4. Procedural Sequence

A key criticism is the larger procedural sequence that Banks is a part of, summarised in Re Key. The three specific areas of criticism are structure, the qualified presumption, and the analysis of rationality of a will on its face, with particular emphasis on the latter.

3.4.A. Structure of the Procedural Sequence

Since, as outlined in Chapter 2.4, there are three stages in the procedural sequence, the evidential burden of proof can shift twice. The ‘highly mobile’ nature of the burden of proof makes it ‘unclear where the burden of proof lies in many such cases’.[133] A factor that compounds this ambiguity is inconsistent judicial application of the sequence. For example, in Abbott v Richardson,[134] Strauss QC does not go through the first stage of analysing rationality of the will on its face to assess whether a presumption is raised. He does not make an explicit reference to the real doubt required to displace the presumption either and therefore has also overlooked the second stage. Instead, there is a more general discussion of contextual rationality throughout;[135] consequently, it is hard to identify where the burden of proof lies during his application. 

3.4.B. The Qualified Presumption

The procedural sequence does not have an unqualified starting presumption of capacity. Instead, a presumption of capacity is only raised if the will has been duly executed and appears to be rational on its face. Particularly when considering the universal presumption of capacity in s1(2) of the Mental Capacity Act 2005 (MCA) and the general ethos of Art 12 CRPD, which maintains that ‘persons with disabilities enjoy legal capacity on an equal basis with others’,[136] the judicial and political consensus seems to support the notion that capacity should be presumed unless proven otherwise. If applied to testamentary capacity, the Law Commission stated a presumption ‘would make clear that a person’s medical status, diagnosis or condition is not determinative of capacity’,[137] with The British Columbia Law Institute adding that a presumption could help in combatting stereotypes about capacity of people with disabilities.[138]

Crucially, an unqualified presumption (or lack thereof) can be determinative. Ideally, as Lady Hale mentioned in Re B (Children),[139] a judge should decide on where ‘the truth lies without needing to rely upon the burden of proof’.[140] However, as was referred to in Sharp v Adam, there may be ‘exceptional[…]’ instances whereby ‘the court is unable to reach an evaluative decision’,[141] meaning that the ‘the burden of proof’ must ‘come to […][the] rescue’.[142]

In the context of probate law, it is not uncommon for there to be contradictory contemporaneous evidence and a lack of expert evidence, or, worse still, a complete lack of evidence from the most proximate days and weeks around the date of execution.

If a case arose with such sparse or highly contradictory evidence, and the courts could not come to a decision, the presence of an unqualified presumption would be determinative. If an MCA-like presumption were applied in this situation, it would be operating throughout, resolving in favour of the testator having capacity. However, with the same evidence, if the unqualified presumption as part of the procedural sequence was used and proceedings were onto the third stage, the evidential burden of proof will be on the propounders; therefore, as there is a lack of evidence available to assist the propounders, the case would likely resolve in favour of the testator lacking capacity. Despite the occasionality of such cases, the impact on them of either having or not having an unqualified presumption could be significant.

3.4.C. The Rationality of the Will

When analysing rationality of a will on its face to raise the presumption, there is immediately a question of subjectivity involved; specifically, the issue is whose standard of rationality constitutes the benchmark? The answer to this is particularly important considering the fundamental principle of testamentary freedom.

The courts have responded by ‘striv[ing] not to be prescriptive in their definition of “rational”’.[143] As discussed in Chapter 2.2.C, Cockburn CJ made clear that the testator, and not the courts, is the one who knows best regarding who does and does not deserve his bounty. This important distinction paves the way for courts to be far more open-minded in their decision over whether wills are rational; just because a testator does not replicate the ‘predictable’ or typical testator behaviour,[144] such as making close relatives their main beneficiaries,[145] or treating children equally,[146] it does not mean the will is deemed irrational on its face. Similarly, even if a testator’s disposition is ‘unexpected, inexplicable, unfair, and even improper,[147] this does not alone deem a will irrational either. It is worth noting, however, that a will with ‘surprising’ provisions can later be ‘material’ to the court’s overall assessment on the testator’s capacity,[148] as long as the inquiry is ‘directed to the testator's soundness of mind, and not to general questions of perceived morality’.[149]

If the courts are to fully commit to the notion that every testator knows his own mind best, and that rationality of a will on its face is based on this, a problem arises: it is virtually impossible to know everything that the testator knew. Sloan illustrates this point using a hypothetical situation whereby ‘Arthur excludes his wife from benefitting under his will because he believes that she is ‘”in league with the devil”’,[150] a belief that has not been backed by evidence submitted to court. The will is clearly irrational on its face. However, Sloan questions whether the will would still be seen as irrational if Arthur ‘knew that his wife had been active member of a secret Satanic cult’ and ‘had kept the information to himself’.[151] Sloan’s hypothetical acutely demonstrates that in order not to be truly overly prescriptive when determining rationality, a more lenient approach should be taken. This superficial approach to determining rationality has been taken to the extreme in some recent cases, perhaps most strongly put forward in Schrader v Schrader.[152] Mann J defined a will that was rational on its face as one that is ‘worded in intelligible English’, with ‘the gifts mak[ing] grammatical and legal sense’.[153] He added that the rationality of a will when determining when to raise a presumption of capacity should be ‘confined to looking at the will itself’, and should not be confused with the deeper ‘inquiry as to rationality in context’ considered later in the procedural sequence.[154] However, this approach is flawed; if analysis of rationality becomes a superficial test that virtually all wills pass, it becomes completely ineffective as all wills will subsequently raise the attached presumption; therefore, there is no reason for there not to be an unqualified presumption of capacity instead.

Another issue with using rationality as a mechanism to raise the presumption is that even when a will is found to be irrational, there is legal ambiguity as to whether or not a presumption of capacity arises. The first view is that if a will is irrational on its face, the ‘initial presumption [of capacity]… is much weaker’.[155] This implies that the strength of the presumption of capacity will be inversely proportional to the ‘degree of irrationality’;[156] a highly irrational will raises a weak presumption of capacity, so less evidence will raise the real doubt.

The alternative view claims that if a will is irrational on its face, the testator will ‘be presumed to have lacked mental competence’;[157] however, this presumption of a lack of capacity will be ‘weaker’ than the ‘presumption of capacity which arises from a rational will’.[158] Despite this line of reasoning perhaps making more common sense, a presumption of incapacity is clearly not compatible with the general 21st century ethos towards disability and capacity.[159] Therefore, the only acceptable interpretation is that a presumption of capacity arises in all cases, regardless of rationality. It follows that the analysis of rationality solely determines the strength of the presumption. The superficial approach to rationality in Schrader could not effectively fulfil the purpose of determining the strength of the presumption; this is because whether or not a will is worded in intelligible English is a binary decision, whereas to effectively gauge the strength of a presumption, there needs to be a sliding scale of rationality. To satisfy this sliding scale, a more contextual analysis of rationality could be used. However, with the aforementioned difficulty of the courts trying not to impinge on testamentary freedom, as well as the notion that the testator knows how to best distribute his bounty, it will become difficult to work out, with any degree of certainty, the strength of the presumption. This will inevitably create ambiguity and inconsistencies in application.

The weakness of the approaches of analysing the rationality of a will, and the ambiguity of its effects, calls into the question whether this mechanism is sufficient, appropriate, or necessary to determine the presumption. Perhaps the ineffectiveness of rationality as a mechanism can be attributed to two factors: its intrinsic meaning and outdatedness. The Oxford Learner’s Dictionary defines rationality as the ‘fact of being based on reason rather than emotion’.[160] Therefore, rationality has a clear emphasis on reason, at the expense of emotion. The issue with such definition is that it is inherently at odds with the Banksian notion of testamentary freedom, namely that each individual knows their own minds best, and that any decision is based on emotional connections with a wide range of relationships, rather than solely the rational or reasonable idea of leaving assets to the closest family members.[161] Despite the word “emotion” not being mentioned in the judgment, Cockburn CJ clearly advocates for the idea that an individual’s ‘passions’ and ‘moral responsibility’ must be considered when determining capacity.[162] When coupled with the fact that the proposition of rationality raising a presumption derives from Symes v Green[163] in 1859,[164] there is a strong argument that the practice of using rationality as the sole benchmark when raising the presumption (as well as its heavy use in the court’s later overall assessment of capacity) is outdated. As established by modern neuroscience and clearly implied by Cockburn CJ in Banks, capacity requires emotional intelligence, not merely reason. The definition of rationality is rooted in the idea of absence of emotion, and therefore using it as a prominent benchmark to assess capacity, regardless of interpretation, seems unwise.

It is clear that the issues with the current procedural sequence can detract from the effectiveness of the Banks test. In the opinion of the author, the law on testamentary capacity would benefit greatly if these procedural aspects were reformed.

The next chapter will consider potential methods of reform, with a particular focus on whether they mitigate the criticisms discussed above.

Chapter 4: Evaluating Potential Reform Proposals

4.1. MCA

The Law Commission’s preferred proposal was to adopt the MCA to assess testamentary capacity.[165]

4.1.A. Key Principles and Purpose of the MCA

Sections 1 to 3 of the MCA are the relevant sections for assessing capacity.[166]

Section 2(1) defines a person who lacks capacity:

‘For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain’.[167]

Section 3(1) then details the specific circumstances in which a person is unable to make a decision for themselves;[168] section 1, and the rest of section 2, contain some other key principles, but the most relevant to will-making are: ‘[a] person must be assumed to have capacity unless it is established that he lacks capacity’;[169] ‘[a] person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success’;[170] and ‘[a] person is not to be treated as unable to make a decision merely because he makes an unwise decision’.[171]

Despite debate on what constitutes the precise purpose of the MCA,[172] the general view is that ‘nothing in Act… provides that one of its purposes is to govern… the validity of a will’ executed by the testator himself.[173] The MCA Explanatory Notes add that Part 1 of the MCA, which includes sections 1 to 3, ‘deals with liability for actions in connection with the care or treatment of a person who lacks capacity to consent to what is done’.[174] Therefore, it follows that the MCA’s purpose is related to decision-making by the person about their life, not about how they want their property to be left post-death. Moreover, although the Statutory Code of Practice does state that the Act’s definition of capacity ‘is in line with the existing common law tests’, it specifically adds that ‘the Act does not replace them’.[175]

4.1.B. Does the MCA solve the Banks Criticisms?

Despite it being clear that the MCA was not explicitly designed to test for testamentary capacity or replace the Banks test, adoption could still solve the criticisms of the Banks test identified in Chapter 3 and benefit the law of testamentary capacity overall. For ease of analysis, the Banks criticisms will be grouped into language and complexity, and the procedural sequence.

Since the MCA uses modern and simple language, it avoids the offensiveness of certain old-fashioned phrasing in Banks and removes ambiguity over what the definition of “understand” is. There is also no ambiguity over the structure of the test. This is a great benefit over the Banks test, because if a layperson were to read the latter, they would likely interpret the first two limbs as to suggest actual understanding, as well as being confused about the relationship between the third and fourth limb. The MCA therefore makes the test accessible for the layperson, an important aspect considering the increase of home-made wills made without legal aid.

Secondly, the MCA has an unqualified starting presumption of capacity.[176] This presumption is more compatible with the CRPD’s ethos of recognising the equal legal autonomy of disabled persons;[177] its practical effect also may give capacity to more vulnerable testators because, when there is a finely balanced case where the judge cannot decide on the evidence, the presumption will favour the testator having capacity. However, if a simple MCA presumption is applied with no additional ‘appropriate and effective safeguards’,[178] this creates an issue. As discussed in Chapter 3.3, certain vulnerable testators may produce a will that is manifestation of their mental impairment, rather than their authentic self. If the presumption always rules in favour of them having capacity in balanced cases, there may be less protection for these vulnerable testators. Resultantly, despite simplifying the procedural sequence, the MCA presumption would increase the instances of wills that are an untrue representation of the testator’s authentic self being held valid, which is clearly an undesirable outcome.

4.1.C. Differences between the MCA and Banks

The MCA also has significant differences from the Banks test that do not relate to the latter’s criticisms. These differences must be analysed to determine whether they could present new issues.

Firstly, s 3(1) MCA requires the testator to always understand all relevant information to a decision,[179] whereas Banks ‘does not require in all cases’ the understanding of all relevant information.[180]  Similarly, s 3(4) requires the testator to be capable of understanding the reasonably foreseeable consequences of all potential choices,[181] whereas Banks only requires the capability of understanding ‘immediate consequences’.[182] As stated in Walker,[183] these differences combine to make the MCA more ‘stringent’ than Banks,[184] and the former ‘may in some cases require more of the testator’.[185] Making the requirements of capacity more stringent raises the threshold for testamentary capacity; this is contrary to the tradition of keeping the threshold low ‘so as not to deprive elderly persons of the ability to make wills in their declining years’.[186]

Secondly, the MCA exclusively contains the principle of supported decision-making in s 1(3), which states that ‘all practicable steps to help’ a testator to make a decision must have been ‘taken without success’ to deem him as lacking capacity. Despite s 1(3) being more compatible than Banks with Art 12(3) CRPD (which outlines a similar supported decision-making principle), there are two impracticalities with the principle. Firstly, retrospectively assessing whether all practicable steps have been taken to help a testator make a testamentary decision is difficult to prove; therefore, the presumption will be difficult to overcome unless there is specific contemporaneous evidence that no (or limited) practicable steps were taken. Secondly, if capacity will be established in all cases unless it is proved that all practicable steps were taken without success, this would, as detailed in Clitheroe,[187] ‘encourage an approach that is the opposite of the “golden rule”’:[188] a testator would be more likely to be held to have capacity if he received no assistance. This would not only remove incentive to get a medical practitioner’s opinion, but also encourage a vulnerable testator (or anyone assisting him) not to actually go through any practicable steps.

Overall, the drawbacks of adopting the MCA far outweigh the benefits. When the provisions in s 3 combine with its simple starting presumption,[189] an especially undesirable outcome occurs: not only would the threshold be higher due to the more stringent capacity requirements, but the presumption would reduce protection for particularly vulnerable testators who need it most. Consequently, the Banks test is superior at balancing the upholding of testamentary freedom and protecting vulnerable testators, which is the fundamental purpose of testamentary law. The Law Commission did suggest that the MCA would be implemented alongside a ‘Code of Practice that draws on the Banks v Goodfellow test’;[190] however, due to MCA precedence, every time there is a conflict of interpretation, which will be inevitable since ‘there are clear differences’ between the tests,[191] it will be resolved in favour of the MCA. This method of reform will not benefit the law on testamentary capacity.

4.2. Placing Banks on a Statutory Footing

The Law Commission’s alternative proposal is placing the Banks test on a statutory footing while incorporating minor elements of reform.[192] The test would be ‘recast in simple, modern terms’[193] in such a way as to alleviate the ambiguities of the definition of understanding and to the number of limbs,[194] and removing offensive language, making it much more accessible to the layperson, much like the MCA proposal. Moreover, the assertion that such reform will make the test ‘in line with current psychiatric thinking’ is technically correct;[195] however, as discussed in Chapter 3.3, the Banks test already capably aligns itself with current psychiatric thinking by placing the focus on the potential effects on testamentary capacity of an impairment rather than analysing the general physiological or biological effects of the impairment. Nonetheless, a statutory Banks test would be generally beneficial in helping ‘to educate the public on the legal… character of the test of capacity to make a will’.[196]

However, such benefit is most likely outweighed by the argument presented by the British Columbia Law Institute: a common law test is ‘better able to respond to emerging trends and new fact patterns’.[197] Subsequent caselaw development has allowed the original test to become more suited to each generation that has applied it since its inception.

Therefore, simply enacting a statutory codification of Banks alone would destroy its ability to evolve. Importantly, it would also not solve the Banks’ procedural issues outlined in Chapter 3.4.

4.3. A New Proposal

Even though a simple statutory codification of Banks would not be beneficial, it must be noted that to guarantee that reform is done relatively quickly and in a way that solves the problems identified, statutory reform is the best method. Therefore, it makes sense to create a statutory codification of the Banks test but design it in such a way that retains its flexibility. With this in mind, a new model of statutory reform is proposed.

4.3.A. First Feature

The importation of an unqualified starting presumption would make the Banks test more in line with 21st century attitudes towards capacity and disability. However, as demonstrated above, such presumption, and its determinative nature in favour of capacity, provides less protection for vulnerable testators, particularly dementia sufferers. To provide an ‘appropriate and effective safeguard’ for these testators,[198] a solution would be including a specific scenario whereby the starting unqualified presumption can be immediately displaced. The author proposes that this specific scenario is when a testator with either borderline or declining capacity has made radical changes to their will shortly before death. Using Banks as inspiration, radical changes will be defined as when ‘the natural affection and the claims of near relationship have been disregarded’ without any obvious explanation.[199] The displacement of the presumption will ensure that the determinative nature of an unqualified starting presumption will not apply in situations involving the testators who are most likely to be at risk of a conflict of interest between their authentic selves and the effects of their mental impairment. The importation of a starting presumption will also alleviate the criticism arising from using rationality of a will to trigger the presumption.

4.3.B. Second Feature

A criticism detailed in Chapter 3.4.A. is the highly mobile burden of proof. Therefore, it is proposed that the traditional three stages in the sequence is reduced to two. The first stage would entail the starting presumption of capacity (or lack of it in the aforementioned specific scenario). The second stage will use a holistic approach (similar to the one suggested by McCombe LJ in Re Burns, which was related to a decision on knowledge and approval):[200] after analysis of all available evidence, the Banks test will be applied to see whether the starting presumption can be reversed. This final decision will determine whether or not there is capacity.

4.3.C. Third Feature

To ensure that the Banks test can retain its common law flexibility despite being statutorily codified, the author proposes that a range of factors should be provided for the courts to consider when applying the Banks test. This way, the courts will have some discretion in their application, which would naturally allow the statutory test to evolve through case law.

When determining what these factors are, it is important to remember that the current law considers contextual rationality when applying the Banks test in the later stages of the traditional procedural sequence. In Chapter 3.4.C., it was argued that the intrinsic definition of rationality, which focused on reason at the expense of emotion, was inappropriate considering the importance of emotional intelligence  in assessing testamentary capacity.

To clarify and refocus this existing element of contextual rationality, it is proposed that it is rephrased as ‘cohesion’; this will be the first factor. Cohesion is defined as ‘the act or state of keeping together’,[201] a much more neutral definition that dispels the championing of reason over emotion. Cohesion will be used to consider the degree of unity in the testator’s wishes; this entails a comparison of the testator’s current wishes with his previous wishes, but importantly places greater value on the analysis of the testator’s more general long-standing moral and financial values. As Brook states, ‘consideration of the testator’s known desires and emotional attachments is essential if we are to uphold the testator’s autonomous wishes’;[202] replacing the analysis of rationality with cohesion will allow for a more explicit investigation into the emotions and passions of the testator, rather than merely what is deemed rational.

The second factor the courts will consider during application of Banks is ‘explicability of recent changes’. The author echoes the idea expressed by Shulman et all that if a testator makes a ‘radical change from their previously expressed wishes’, this should make a case for ‘a more detailed probing of their cognitive functioning’,[203] regardless of their vulnerability. The word ‘explicability’ will funnel a more open-minded investigation towards the possible explanations as to these radical changes, rather than simply determining whether such changes were rational or not.

An important fact to note regarding these factors is that it is perfectly sensible and normal for an elderly testator to completely contradict a provisional will that was made decades ago when they were simply tidying up their affairs. Since opinions and values change radically during decades of life, it is likely that the recent will, potentially made just before death, includes significant changes to the testator’s provisional will. This situation is clearly common, and should not, in and of itself, raise questions over capacity. These factors simply focus analysis on whether the radical changes are completely contrary to the testator’s lifelong values, and whether they can be explained by any major external recent events that are likely to affect these values. If the changes cannot be explained and completely lack cohesion, this will strongly suggest an incapable testator.

4.3.D. Fourth Feature

Echoing the law Commission, the Banks test will be itself will be recast in simple, modern, and inoffensive terms to reduce ambiguity and improve accessibility to the layperson. An example of an ideal restatement is in the Australian case of Read v Carmody.[204]

4.4. Demonstration of Proposal in Practice

In practice, most testators will not fall under the specific scenario. They will be presumed to have capacity, and the courts will then apply the restated Banks test, whilst considering cohesion and explicability of recent changes to determine whether the presumption will be displaced. In cases where evidence is finely balanced, the presumption will resolve in favour of the testator having capacity.

To demonstrate the specific scenario, the proposal will be hypothetically applied to Re Templeman.[205] The testator, Lord Templeman, had declining capacity from early dementia and had made radical changes to a previous will, namely leaving his house to his deceased wife’s stepdaughters rather than his sons, shortly before death.[206] As the facts fall under the specific scenario, the initial presumption of capacity will be displaced.

The evidence described Templeman as having a ‘devotion to those who loved and cared for him’, and Templeman’s wife’s stepdaughters had helped him care for his wife, look after his affairs and cope with the grief when his wife died, all of which occurred after his previous will.[207] When considering cohesion and explicability of recent changes in the second stage, it is clear that Lord Templeman’s decision to give the house to these women could be easily explained by these recent events and his long-term moral values. Subject to application of the restated Banks test, Templeman would likely have testamentary capacity according to the proposed model. Alternatively, if the evidence in Lord Templeman’s case was balanced and the judge could not come to a conclusion during the second stage, the lack of presumption will resolve in favour of incapacity.

In reality, the judge held Templeman to have capacity, the same result that would have occurred with the proposed model. However, the objectors were heavily focused on how there was ‘no rational explanation for the change’.[208] They argued that Templeman’s explanation for the change (that the ‘house really belonged to his [wife’s] family and should be left to them’) ‘was equally the case in [his previous will]’, when he instead left his house to his sons. Therefore, since ‘nothing had changed in that regard’ by the time of his new will, his explanation was ‘irrational’, and should be inferred to be down to an illusory belief.[209] They later used supposed instances of Templeman’s ‘illogical’, irrational behaviour as evidence of ‘a sign of mental malfunction’.[210]

Interestingly, Fancourt J repeatedly asserted the notion that the defendant’s ‘legalistic analysis’,[211] centred on rationality, resulted in a failure ‘to make allowance for emotions and feelings’.[212] This demonstrates that if cohesion and explicability were used instead of rationality, the importance of emotion and lifelong moral values in assessing capacity, as highlighted by Fancourt J, would be greatly clarified for both judges and individuals taking probate actions in the future.

Chapter 5: Conclusion

Analysis of the Banks test has shown that, despite its remarkable perspicacity, it has several weaknesses which affect the balance between upholding testamentary freedom and protecting vulnerable testators, especially when considering the larger procedural sequence of which it is a part. The lack of an unqualified presumption is incompatible with modern attitudes towards capacity and disability and can be seen as contrary to upholding testamentary freedom. Moreover, analysis of rationality as a mechanism encourages an approach to capacity that focuses on rationality and reason at the expense of analysing emotional intelligence and moral values. Consequently, it lacks the nuance to determine capacity in accordance with modern science and thinking. Finally, the test is lacking in accessibility for the layperson, which is critical considering the incidence of home-made wills; it follows that the more ambiguous the law on testamentary capacity is to an average person, the more disputes and confusion that will arise from wills.

The Law Commission’s proposal to adopt the MCA appears, at first, to increase testamentary freedom; the unqualified starting presumption is an important step into the 21st century. However, some of the more stringent requirements of understanding, particularly the ‘reasonably foreseeable consequences’ of numerous potential decisions,[213] may in cases raise the threshold, which would not only ‘deprive… elderly persons… in their declining years’ the chance to make wills when it is most necessary,[214] but affect all vulnerable testators hovering around the ‘imprecise divide’.[215] Moreover, the determinative nature of a starting presumption could contribute to less protection for the most vulnerable testators, which is completely antithetical to what is required.

The second Law Commission proposal of placing Banks on a statutory footing does not perhaps affect the balance as negatively as adoption of the MCA, but it still does not assuage the criticisms of the Banks test, whilst crucially also becoming inflexible. The common law flexibility of Banks is key factor in its longevity, and any reform should clearly retain this flexibility.

The author’s proposed model has statutorily codified the Banks test in order to make it more accessible to the layperson but has also attempted to restructure the procedural sequence as to maintain its flexibility and find the best balance of freedom and protection thus far. Firstly, the unqualified presumption and the specific scenario in which it can be displaced simultaneously increases testamentary freedom whilst protecting vulnerable testators.

Secondly, the shift from analysing rationality to analysing cohesion and explicability of recent changes aims to provide more nuance when assessing capacity, allowing easier identification of which side of the threshold a testator is on. The introduction of these factors, whilst incorporating an accessible version of the common law test that has lasted over a century, should result in the courts promoting the realisation of the right quality of autonomy: best desire autonomy, rather than current desire autonomy. Resultantly, the author believes that this reform proposal will be nothing but beneficial for the law on testamentary capacity.

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Footnotes

[1] Mortimer on Probate (1st edn, 1911) 42, cited in Perrins v Holland [2010] EWCA Civ 840, (2011) Ch 270 [13].

[2] Banks v Goodfellow (1869-70) LR 5 QB 549. 

[3] ibid 565.

[4] Brian Sloan, Borkowski's Law of Succession (4th edn, OUP 2020) 80.

[5] Mental Capacity Act 2005 (MCA 2005), ss 16 and 18.

[6] ibid s 1(5).

[7] Sloan, Borkowski's Law of Succession (n 4) 80.

[8] Banks (n 2) 564.

[9] Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May 2008) 2515 UNTS (CRPD).

[10] Law Commission, Making A Will (Law Com No 231, 2017) [3.17].

[11] CRPD (n 9) art 12(2).

[12] Law Commission, Making a Will (n 10) [1.11].

[13] CRPD (n 9) art 12(4).

[14] Law Commission, Making a Will (n 10) [7.94].

[15] Sharp v Adam [2006] EWCA Civ 449 [94] (May LJ).

[16] Banks (n 2) 565.

[17] Penelope Reed, ‘Capacity and Want of Knowledge and Approval’ in Birke Häcker and Charles Mitchell (eds), Current Issues in Succession Law (Bloomsbury Publishing Plc 2016) 170.

[18] Law Commission, Making A Will (n 10) [2.37].

[19] Hawes v Burgess [2013] EWCA Civ 94.

[20] ibid [11] (Mummery LJ).

[21] Sharp (n 15) 93 (May LJ).

[22] Kostic v Chaplin [2007] EWHC 2298 (Ch).

[23] ibid [198] (Henderson J).

[24] Martyn Frost, Stephen Lawson, and Robin Jacoby, Testamentary Capacity: Law, Practice, and Medicine (OUP 2015) para 2.22.

[25] Law Commission, Making A Will (n 10) [2.39]

[26] Sharp (n 15) [68]; Banks (n 2) 565.

[27] Re Baron Templeman [2020] EWHC 632 (Ch) [12].

[28] Frost, Lawson, and Jacoby (n 24) para 2.33.

[29] Simon v Byford [2014] EWCA Civ 280, (2014) WTLR 1097.

[30] ibid [44]-[45].

[31] Frost, Lawson, and Jacoby (n 24) para 2.36.

[32] Simon (n 29) [43], [46].

[33] ibid [46].

[34] Law Commission, Making A Will (n 10) para 2.24.

[35] Waters v Waters [1848] 64 ER 263.

[36] ibid 276 (Coleridge J).

[37] Frost, Lawson, and Jacoby (n 24) para 2.37.

[38] Wood v Smith [1993] Ch 90 (CA).

[39] ibid 114.

[40] Banks (n 2) 565.

[41] Frost, Lawson, and Jacoby (n 24) para 2.46.

[42] Banks (n 2) 563-564.

[43] ibid 564.

[44] ibid.

[45] ibid.

[46] Law Commission, Intestacy and Family Provision Claims on Death (Law Com No 331, 2011) [1.21].

[47] Banks (n 2) 564.

[48] Markou v Goodwin [2013] EWHC 4570 (Ch) [53] (Nugee J).

[49] Sharp (n 15) [79] (May LJ).

[50] Harwood v Baker [1840] 3 Moo PC 282, 13 ER 117, 120 (Erskine J)

[51] In the Estate of Park [1954] P 112.

[52] ibid 133.

[53] Perrins v Holland [2009] EWHC 1945 (Ch) [40] (Lewison J)

[54] Tchilingirian v Ouzounian [2003] EWHC 1220 (Ch) [72] (Hazel Williamson QC)

[55] Kelly Purser, ‘Assessing Testamentary Capacity in the 21st Century: Is Banks v Goodfellow Still Relevant?’ (2015) 38(3) UNSW LJ 854, 864.

[56] Frost, Lawson, and Jacoby (n 24) para 1.10.

[57] Waring v Waring [1848] 6 Moo PCC 341.

[58] Smith v Tebbitt [1867] LR 1 P&D 398.

[59] Waring (n 57) 351.

[60] Smith (n 58) 401.

[61] Banks (n 2) 551-552.

[62] ibid 565.

[63] ibid 566.

[64] ibid 560.

[65] ibid.

[66] Juliet Brook, ‘Banks v Goodfellow (1870): Defining Testamentary Capacity’ in Brian Sloan (ed), Landmark Cases in Succession Law (Hart Publishing 2019) 69 (Brook, ‘Defining Testamentary Capacity’).

[67] Kenneth I Shulman and others, ‘Banks v Goodfellow (1870): Time to Update the Test for Testamentary Capacity’ (2017) 95 CBR 251, 254.

[68] ibid.

[69] Brook, ‘Defining Testamentary Capacity’ (n 66) 69.

[70] Re Key (Deceased) [2010] EWHC 408 (Ch), (2010) 1 WLR 2020.

[71] ibid [97].

[72] Kenward v Adams (Ch D, 29 November 1975).

[73] Re Simpson [1977] 127 NLJ 487, cited in Frost, Lawson, and Jacoby (n 24) para 6.13.

[74] Re Burns [2016] EWCA Civ 37 [47] (McCombe LJ).

[75] Allen v Emery [2005] EWHC 2389 (Ch) [25] (Sonia Proudman QC).

[76] Re Key (n 70) [8] (Briggs J).

[77] Sharp (n 15) [27] (May LJ).

[78] Hawes (n 19) [60] (Mummery LJ).

[79] Parker v Felgate [1883] 8 PD 171.

[80] Frost, Lawson, and Jacoby (n 24) para 2.14.

[81] Sloan, Borkowski's Law of Succession (n 4) 88.

[82] Smith (n 58).

[83] Sloan, Borkowski's Law of Succession (n 4) 88.

[84] Parker (n 79) 173 (Sir James Hannen P).

[85] Sloan, Borkowski's Law of Succession (n 4) 85.

[86] Shulman (n 67) 252.

[87] Law Commission, Making A Will (n 10) [2.40].

[88] Brook, ‘Defining Testamentary Capacity’ (n 66) 67; Hawes (n 19) [11], [55].

[89] For example, see Re Templeman (n 27).

[90] Sharp (n 15) 93.

[91] Law Commission, Making A Will (n 10) [2.39].

[92] Brook, ‘Defining Testamentary Capacity’ (n 66) 68.

[93] Frost, Lawson, and Jacoby (n 24) para 2.24.

[94] Banks (n 2) 565

[95] Atter v Atkinson [1865-69] LR 1 P&D 665.

[96] ibid 670.

[97] Brian Sloan, ‘Burdens, Presumptions and Confusion in the Law on Want of Knowledge and Approval’ (2017) 6 Conveyancer and Property Lawyer 440, 446.

[98] Hoff v Atherton [2004] EWCA Civ 1554 [34] (Peter Gibson LJ).

[99] Greenwood v Greenwood [1790] 3 Curt App 30.

[100] Harwood (n 50).

[101] Banks (n 2) 557, 568-569.

[102] Harwood (n 50) 120 [Erskine J].

[103] Greenwood (n 99), cited in Banks (n 2) 557.

[104] Hoff (n 98).

[105] ibid [47] (Gibson LJ).

[106] Simon (n 29) [40] (Lewison LJ).

[107] Law Commission, Making A Will (n 10) [2.82].

[108] Sloan, Borkowski's Law of Succession (n 4) 81.

[109] Law Commission, Making A Will (n 10) [2.78].

[110] Frost, Lawson, and Jacoby (n 24) para 2.08; Sharp (n 15) [66] (May LJ).

[111] Shulman (n 67) 261.

[112] ibid 262.

[113] Re Key (n 70) 95 (Briggs J).

[114] Benjamin Liptzin et al, “Testamentary Capacity and Delirium” (2010) 22(6) Intl Psychogeriatrics 950.

[115] Sloan, Borkowski's Law of Succession (n 4) 80.

[116] Alzheimer’s Research UK, ‘Dementia Statistics Hub: Prevalence’ <www.dementiastatistics.org/statistics-about-dementia/prevalence/> accessed 19 January 2021.

[117] Banks (n 2) 566.

[118] Centres for Disease Control and Prevention (CDC), ‘What Is Dementia?’ <https://cdc.gov/aging/dementia/index.html> accessed 20 January 2021.

[119] ibid.

[120] Shulman (n 67) 263.

[121] ibid.

[122] ibid 262-263.

[123] ibid 263.

[124] Carmelle Peisah, Henry Brodaty, and Carolyn Quadrio, ‘Family Conflict in Dementia: Prodigal Sons and Black Sheep’ (2006) 21(5) Intl J Geriatric Psychiatry 485.

[125] CDC (n 118).

[126] John Coggon, ‘Varied and Principled Understandings of Autonomy in English Law: Justifiable Inconsistency or Blinkered Moralism?’ [2007] 15 Health Care Analysis 235.

[127] Juliet Brook, ‘The Neighbour, The Carer and The Old Friend — The Complex World of Testamentary Capacity’ in Heather Conway and Robin Hickey (eds), Modern Studies in Property Law, vol 9 (Hart Publishing 2017) 130 (Brook, ‘The Neighbour’).

[128] Shulman (n 67) 263; Carmelle Peisah, ‘Reflections on Changes in Defining Testamentary Capacity’ (2005) 17(4) Intl Psychogeriatrics 709, 709-712.

[129] Banks (n 2) 565.

[130] ibid.

[131] Brook, ‘The Neighbour’ (n 127) 131; Nicholas O’Neill and Carmelle Peisah, Capacity and the Law (Sydney, Sydney University Press 2012) Ch 2.

[132] Banks (n 2) 560.

[133] Law Commission, Making A Will (n 10) [2.32].

[134] Abbott v Richardson [2006] EWHC 1291 (Ch).

[135] ibid [46], [91], [185]-[199]. 

[136] CRPD (n 9) art 12(2).

[137] Law Commission, Making A Will (n 10) [2.88].

[138] British Columbia Law Institute, Report on Common-Law Tests of Capacity (BCLI Report no 73, 2013) 43-46 (BCLI).

[139] In Re B (Children) [2008] UKHL 35, (2009) 1 AC 11.

[140] ibid [32].

[141] Sharp (n 15) [74] (May LJ).

[142] Re B (Children) (n 139) 32 (Lady Hale).

[143] Brook, ‘The Neighbour’ (n 127) 123.

[144] ibid.

[145] Jonathan Herring, Older People in Law and Society (OUP, 2009) 314.

[146] Janet Finch and Jennifer Mason, Passing On: Kinship and Inheritance in England (Routledge, 2000) 77.

[147] Gill v Woodall [2010] EWCA Civ 1430, (2011) Ch 380 [26] (Lord Neuberger). See also Boughton v Knight [1872-75] LR 3 P&D 64, 66 (Sir James Hannen).

[148] Cowderoy v Cranfield [2011] EWHC 1616 (Ch), (2011) WTLR 1699 [133] (Morgan J).

[149] Sharp (n 15) [79] (May LJ).

[150] Sloan, Borkowski's Law of Succession (n 4) 85.

[151] ibid.

[152] Schrader v Schrader [2013] EWHC 455 (Ch), (2013) WTLR 701.

[153] ibid [76].

[154] ibid [78].

[155] Frost, Lawson, and Jacoby (n 24) para 5.02.

[156] ibid.

[157] Sloan, Borkowski's Law of Succession (n 4) 88.

[158] ibid.

[159] CRPD (n 9) art 12.

[160] Oxford University Press, ‘Oxford Learner’s Dictionary’ (OUP) <https://www.oxfordlearnersdictionaries.com/definition/english/rationality> accessed 15 February 2021.

[161] Banks (n 2) 563-564.

[162] ibid 560, 565.

[163] Symes v Green [1859] 1 Sw & Tr 401.

[164] Law Commission, Making A Will (n 10) [2.32].

[165] Law Commission, Making A Will (n 10) [2.65].

[166] ibid [2.47].

[167] MCA 2005, s 2(1).

[168] ibid s 3(1). See also ss 3(2) to 3(4).

[169] ibid s 1(2).

[170] ibid s 1(3).

[171] ibid s 1(4).

[172] Re Walker (Deceased) [2014] All ER (D) 258 (Nov) [13], [27]-[34] (Strauss QC); Re Clitheroe (Deceased) [2021] EWHC 1102 (Ch) [58]-[71] (Falk J).

[173] Re Walker (n 172) [28] (Strauss QC).

[174] Explanatory Notes to the MCA 2005, para 7.

[175] Department of Constitutional Affairs, Mental Capacity Act 2005: Code of Practice (TSO 2007) para 4.33.

[176] MCA 2005, s 1(2).

[177] CRPD (n 9) art 12.

[178] ibid art 12(4).

[179] MCA 2005, s 3(1)(a).

[180] Re Walker (n 172) [23] (Strauss QC).

[181] MCA 2005, s 3(4).

[182] Simon (n 29) [34]-[35] (Lewison LJ).

[183] Re Walker (n 172).

[184] ibid [34] (Strauss QC).

[185] ibid [23].

[186] ibid [32].

[187] Re Clitheroe (n 172).

[188] ibid [62] (Falk J).

[189] MCA 2005, ss 1(2), s 3(1) and s 3(4).

[190] Law Commission, Making A Will (n 10) [2.70].

[191] Re Walker (n 172) [26] (Strauss QC).

[192] Law Commission, Making A Will (n 10) [2.74].

[193] ibid [2.76].

[194] ibid [2.78], [2.81].

[195] ibid [2.76].

[196] BCLI (n 138) 43.

[197] ibid.

[198] CRPD (n 9) art 12(4).

[199] Banks (n 2) 570.

[200] Re Burns (n 74) [56].

[201] Oxford University Press, ‘Oxford Learner’s Dictionary’ (OUP) <https://www.oxfordlearnersdictionaries.com/definition/english/cohesion?q=cohesion>  accessed 16 February 2021.

[202] Brook, ‘Defining Testamentary Capacity’ (n 66) 68.

[203] Shulman (n 67) 264.

[204] Read v Carmody (NSWCA, 23 July 1998) applied in Grynberg v Muller [2001] NSWC 532 and Challen v Pitt [2004] QSC 365, cited in Frost, Lawson, and Jacoby (n 24) para 2.55.

[205] Re Templeman (n 27).

[206] ibid [1]-[11].

[207] ibid [111].

[208] ibid [7].

[209] ibid [7]-[8].

[210] ibid [122].

[211] ibid [110].

[212] ibid [122].

[213] MCA 2005, s 3(4).

[214] Re Walker (n 172) [32] (Strauss QC).

[215] Sharp (n 15) [94] (May LJ).