High Court dismisses MCA 2005 as test for testamentary capacity
Since the MCA came into force, it has been unclear whether the common-law test has been superseded by the statutory test or what their interaction should be. The code of practice appended to the MCA is ambiguous on the point, stating that its own definition of capacity is 'in line with the existing common law tests and does not replace them', but allowing judges in such cases to adopt the new definition 'if they think it is appropriate'.
However, according to Rebecca Piper of law firm Charles Russell Speechlys, the ruling in Walker v Badmin confirms that 'the correct and only test' for testamentary capacity is the one outlined in the Banks v Goodfellow judgment of 1870. The Banks judgment has since been reinforced by many later cases such as Re Beaney.
The Walker case was fairly typical of its kind: an elderly woman suffering from a brain tumour made a will five weeks before her death leaving her property to her partner on a life interest, to benefit her daughters on his death, and left half the residue of her estate to her partner and half between her two daughters. The daughters challenged the will's validity on testamentary capacity grounds (among others).
The case was heard by Nicholas Strauss QC sitting as Deputy High Court Judge. Strauss' judgment explicitly admits that the MCA capacity test and the case law test are not guaranteed to produce the same answer regarding testamentary capacity, although they usually do. This, he said, is because there are at least two key differences between the tests:
- The MCA test assumes capacity unless proved otherwise. The case law only requires the challenge to raise a 'real doubt', at which point the burden of proof switches to those who claim the testator had capacity; and
- The MCA asserts that the testator must be able to understand all the information relevant to the decision, including the reasonably foreseeable consequences. Case law only requires the testator to appreciate the claims to which he ought to give effect in the will, and that the will reflects them. For example, in the recent Court of Appeal case of Simon v Byford (2014 EWCA Civ 1554), it was held that inability to understand the collateral consequences of a will does not affect the validity of a will at common law.
Thus, concluded Strauss, the MCA test is the more stringent of the two. There will be some cases where its use might invalidate a will that the common law would uphold.
He then had to decide which test should apply. He took the view that the wording of the MCA suggests it was only ever intended to enable the court to make decisions for living, incapable, persons, not deceased testators.
Moreover, said Strauss, the threshold for testamentary capacity has traditionally been kept low so as to allow elderly people to make a will in their declining years, and it was unlikely that parliament would have reversed this policy without announcing the fact. Thus, he concluded, the MCA does not override or modify existing case law, and Banks and its successors remain in effect.
This reasoning did not affect Strauss's ruling in Walker v Badmin, because in that case, he said, the two tests did give the same result. Nevertheless, it is important for the future that the legal basis for the correct test has been spelled out. 'Many practitioners will welcome this decision', noted Rebecca Piper.
The ruling in Walker has since been supported by a second case, Re Smith (2014 EWHC 3926 Ch), in which Stephen Morris had to consider a challenge to an inter vivos gift made by the deceased. He too held that the MCA capacity test did not apply.
However, it seems some practitioners still want to see the matter confirmed by appeal to a higher court.
'It is unfortunate that courts are still having to spend time deciding the issue of the extent to which the MCA applies to gifts (whether in wills or inter vivos), the burden of proof, whether the tests are different and if so how', commented experts at 39 Essex Street chambers. 'This is especially so where, as in these cases, the exposition is usually of academic interest only. There are, though, undoubtedly circumstances in which the exposition will not be of academic interest. We therefore hope that a suitable case does get to the Court of Appeal sooner rather than later so that this question can be resolved once and for all.'
- In June of this year the Law Commission began a project to examine the law on validity of wills, including the test for testamentary capacity.
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