This case considers the relationship between the common law test of testamentary capacity, as set out in Banks v Goodfellow (1870) LR 5 QB 549 and the test for capacity set down in ss.2-3 Mental Capacity Act 2005.
HHJ Tindal highlights the difficulties with having two separate tests for testamentary capacity, and in particular, the potential for two different decisions about the capacity of the same individual, for the same Will, in different Courts.
As it stands, and as highlighted within this case, there is a real possibility that the Chancery Division could find an individual had capacity when making his Will at common law, deeming it valid, whereas the Court of Protection could determine that the same individual lacked the requisite capacity when considering the Mental Capacity Act 2005, deeming the same Will invalid.
HHJ Tindal “tentatively” proposes this “compromise solution”:
· ss.2-3 MCA do not strictly apply to testamentary capacity in Probate cases;
· ss.2-3 and general common law on capacity are aligned (and consciously so);
· ss.2-3 are broadly consistent with the common law on testamentary capacity;
· ss.2-3 and the Banks criteria are consistent and can ‘accommodate’ each other;
· ss.2-3 are ‘appropriate’ to be included by analogy within the common law approach to testamentary capacity in Probate cases.”
As such, HHJ Tindal proposes the following:
“Given differences between ss.2-3 MCA and the common law on testamentary capacity are over-stated, I consider there is a straightforward way of reconciling them and for ss.2-3 MCA (which are ‘issue-specific’) to ‘accommodate’ the common law test. That is for the first three limbs of the Banks test to be treated as the ‘relevant information’ under s.3 MCA and for the fourth limb to map onto s.2 MCA.”
The friction between common law and statute on testament capacity is not new, but HHJ Tindal within this case has made attempts to address the ‘elephant in the room’ where often, it has been convenient not to have to engage with COP decisions on the MCA 2005.
HHJ Tindal’s “compromised solution” may be considered a useful way to address the clash in common law and statute, and a way to enable COP cases to be considered in line with the 4-limb test set out in Banks. However, time will tell what, if any, impact HHJ Tindal’s proposal will have.