Walker -v- Badmin [2014], Testamentary Capacity is a common law issue

Fascinating new case about testamentary capacity and the differences between the Mental Capacity Act test and the old common law test of Banks -v- Goodfellow.

I expect there to be huge amounts of commentary about this, but Araba Taylor certainly seems to have done a good job here:  she has provided enough argument for the judge to be convinced that the MCA does not apply to tests of capacity of deceased persons and the validity of the wills made.

This is quite a massive step – since the Act introduced a new set of distinct tests for capacity, there has been a question over whether the MCA test for testamentary capacity was the same as, or superceded the common law test.  Most textbooks have been decidedly woolly on the subject – saying it was a rephrasing of the common law in modern language – Banks and Goodfellow is quite old now…  (over 140 years) and one might think that our understanding of mental awareness has increased over the intervening years.

This judgment suggests that the MCA test is higher than the common law test – which sets the bar lower – partly because many people who make their wills do so when elderly and infirm, and sometimes when they need the help of others to fully comprehend their circumstances so they can make effective decisions.  And that this cannot have been intended by the lawmakers at the time.

23. A second difference arises from section 3(1), which requires a person to be able to understand all the information relevant to the making of a decision. This, at least arguably, may in some cases require more of the testator than the common law test, which concentrates on whether the will correctly represents the testator’s intentions and his appreciation of the claims to which he ought to give effect, but does not require in all cases that he is able to remember and understand all relevant information. See Banks, above, Fuller v. Strum [2001] EWCA Civ 1879 at [65] and paras. 32-3. below.

24. A third difference is that the effect of section 3(1) read together with section 3(4), if applicable, would render a will invalid if the testator was unable to understand, use or weigh information as to the reasonably foreseeable consequences of the choices open to him, because of the impairment of his mind or brain. Presumably, that would be limited to material consequences, that is consequences which the testator might reasonably be expected to take into account, but this too probably requires more of a testator than the Banks test, at least in some cases.

It seems that the judge here has considered that the common law test should be determinative when considering whether wills are made validly, and that the MCA directions more correctly apply to the statutory wills regime (whereby the Court of Protection sanctions a will that the patient would have made, had they had capacity). This is also relevant when challenging wills, because of the burden of proof that lies with the propounder of the will to prove that any doubts as to validity have been allayed, once a suspicion has been roused.  The MCA presumes capacity, wherever possible.

In addition, the rest of the MCA is all about assisting patients with decision making and autonomy when they are living, rather than examining the decisions that have been made.

The judge in this case wondered whether it was possible for any testator to fully give all considerations to the material consequences of their decisions.  Perhaps some of the decisions made in a will might be dependent on legal advice as to their efficacy.  In the circumstances of this case, the testatrix left a life interest in what she had (which included an unresolved interest in the former matrimonial property) to her partner (remainder children), and then from the residue, she left part to her children and part to her partner.  The partner was of the same generation as the children.  The practical effect of a life interest would mean that her children would be unlikely to benefit in their own lifetimes, but it would be for the grandchildren to benefit in due course.  Was the letter (which may or may not have been written by the testatrix, and probably by her partner, but signed by the testatrix) written to explain the rationale behind the decisions she made enough to show that she had a full understanding of the effect of her will?

In this decision, having weighed considerable evidence, the judge thought that the testatrix’s side letter did show some reflection on the consequences of having a life interest.

As a side note, the judge did consider that it might well have been prudent to seek medical advice at the time of taking instructions, as per Kenward and the Golden but tactless rule…


Lessons from ‘Clarity on Capacity’ | The STEP Blog

Lessons from ‘Clarity on Capacity’ | The STEP Blog.

The original article was very interesting indeed.  That, coupled with some practical advice on how to get cooperation with a medic at the right time would be very interesting.


I have had the doctor refuse to give a capacity opinion on the basis that he was an NHS doctor, and this did not fall under NHS work – it was a private enquiry or opinion, and therefore not something he was prepared to do.

Testamentary capacity and the MCA 2005 (again)

Link from the STEP newsletter to 39 Essex Street Chamber’s article (page 13) on the testamentary capacity test and how this contrasts with the MCA test.  This is something we also explored in yesterdays Proconference

Golden, but tactless

Golden – but tactless.

If you are making radical changes to your will and you are of advanced years, or have a history of mental illness (which includes strokes and tumours), please do not be offended if your solicitor explains that they would like to consult your doctor.

The solicitor (and this includes members of the Society of Trusts and Estate Practitioners) is trying to do the best for you. This means that they are trying to make sure not only that your will is drafted following your instructions, and executed in accordance with the formalities, but that it will stand being tested at a later date.

People who are disappointed at being left out of a will do sometimes allege that the person making the will did not know what they were signing – this could mean literally – the person did not understand the English language, could not read through blindness or partial sight, or were deceived in putting their signature to the paper in front of them. Or it could mean a deeper sense of understanding – that the person signing the will did not have the necessary mental awareness to be able to make a will.

In such cases, the law states that the solicitor should obtain the professional opinion of a doctor that the person has testamentary capacity *at the time of giving instructions preferably* – and if they did not, the solicitor has to explain why not – and it is seen as a major blow to the will being proved if there is a reasonable doubt.

“ the Defendants have only themselves to blame for not having [the testatrix] assessed by a psycho-geriatrician in order to determine her capacity in May 2007. [He] accepted that he was aware of the golden rule for solicitors dealing with aged or seriously ill testators , viz. that it is best practice for the will to be witnessed or approved by a medical practitioner who ought to record his examination”

In the recent case of Catling –v- Catling, the judge was particularly scathing of the “professional” adviser (Mr Wallace) that assisted the late Mrs Catling in the preparation of her final will (executed in 2007).

In that case, Mrs Catling had ceased to use her solicitors of many years, who had prepared many previous wills for her. Those wills were very different from the last will that was presented to be proved. In earlier wills, Mrs Catling had treated her children equally. In the final will, she excluded all but her youngest child, Kevin.

The judgment does present many unhappy facts – it appears that Mrs Catling did make wills with her usual solicitor, but that he had found himself unable to continue to advise her because of the suggestion that she was being manipulated by Kevin and his wife, with whom she lived at the time of the will being made, Kevin’s wife being the main carer for Mrs Catling. Mrs Catling also made an Enduring Power of Attorney, which was registered in 2005 appointing that solicitor to be an attorney, but from which he retired, from a sense of being compromised.


It appears that the replacement for that solicitor was Mr Wallace. He was not legally qualified, having only completed a law degree and not completed any further training. He was also a trained builder and described himself as a student barrister – but it appears that Mrs Catling and her family believed him to be a barrister or solicitor and that their misunderstanding was not cleared up immediately. Mr Wallace had a set of terms of engagement that were onerous and not in Mrs Catling’s interest, and the will he drew up contained wide powers for him to charge fees for being her executor, and at the same time wide exclusions from liability and high charges for interest on unpaid bills.

Evidence given in the trial confirmed that once Mrs Catling had sold the house she lived in and moved to live with Kevin and his wife, the rest of the family were continually denied access to her – told that it was not a convenient time, or were unable to speak to her on the phone. This conduct had been raised with Social services,

The story transpires that Mr Wallace visited Mrs Catling between two and four times a week for about two years (that sort of attention is not necessary for making a will and quite unusual). He did spend time with Mrs Catling alone, but the instructions for a will appear to be sketchy, and show that Kevin was present at the time, and to have given subsequent instructions. Mr Wallace also appeared not to understand that there might be any impropriety in having Kevin present, or having Kevin give the instructions for the will. There appears to be no time at which Mr Wallace saw Mrs Catling independently of Kevin and attempted to ascertain her instructions. The time taken to complete the will from initial instructions to execution took some 16 months, which the judge found to be unreasonable, given Mrs Catling’s health and dementia (which may well have been apparent, since the Enduring Power of Attorney was registered in 2005 on her previous solicitor considering that she had lost or was losing the ability to look after her property and financial affairs)

A medical expert was appointed by the court to give evidence on whether Mrs Catling could have understood the earlier wills, made with solicitors, and whether she could have had the necessary mental awareness either at the time of giving instructions, or when executing the will. That expert drew upon as many sources of information as were available in order to come to his conclusion:

By May 2007 I consider that the testatrix was different from dementia of at least moderate degree. If the MMSE score of 4/26 elicited one or two months after she made the ~Will was a reflection of her cognitive state at the time she made her will, it is likely that she was severely demented and would, in my opinion probably not have fulfilled the Banks –v- Goodfellow test because she would have been unable to exercise judgment in assessing the competing moral claims of her eight children for her bounty. It is also probable that she would not have been able to appreciate the extent of her estate. However, it is also possible that delirium, contributed to the low MMSE score in June or early July 2007 and that her score might have been higher in May. I do not consider it safe to presume that the testatrix did have the capacity to make a will in May 2007. Nor do I think that she would have been able to recall that she was making a will drawn up on her previous instructions”

In his concluding words, the judge not only came to a decision on the mental capacity of the testatrix based on the expert evidence, but stated that “this conclusion is reinforced by the Defendant’s failure to follow the golden rule”