The Interaction between Common Law and the Mental Capacity Act 2005
Facts:
The deceased died aged 91 in 2020. In his will, he named one of his children as executor while disinheriting one of his children. Although he and his late wife never divorced, they separated in the 1980s and Stanley moved in with his new partner. They both made wills to leave half-shares of their home in Birmingham to Diane and Martin. Over the years, he also changed his will six times with family beneficiaries being disinherited and re-inherited. In the last will from 2020 was challenged by the daughter of Stanley’s former partner who had supported him and her mother on the ground that he was diagnosed with dementia in 2014 and, therefore, lacked mental capacity.
Decision:
Although the common law test has been in use since 1870, in some recent cases the court held that the test in sections 2 to 3 of the Mental Capacity Act 2005 (MCA) is more appropriate. HHJ Tindal, therefore, sought to reconcile the MCA with Banks v Goodfellow. He proposed various solutions in paragraph 22 of the judgement.
HHJ Tindal emphasised that there is a distinction between the situation where the Court of Protection is applying the MCA and the situation where the High or County Court is considering matters from a probate perspective. In those situations, the court is not applying the MCA 2005 as it only applies for the Act’s purposes. To avoid any problems if the approach to testamentary capacity in common law is substantively different from the MCA, the Judge ruled that the MCA should be interpreted as clarifying and modernising the common law test.
Regarding the effect of the differences in the operation of the presumption of capacity between the common law and MCA, HHJ Tindal noted that the burden of proof is not mutually exclusive. Instead, section 1(2) MCA put the presumption of mental capacity on a statutory footing. The Judge also felt that “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” (para. 41).
Implications:
Although the parties reached an agreement to settle the case, the Judge felt obliged to make a judgement. The case is lengthy as HHJ Tindal made sure to explain how differences on the face might actually result in similar outcomes.
This case clarifies the relationship between the common law test of testamentary capacity as established in Banks v Goodfellow and the Mental Capacity Act 2005. As there is a clear overlap between the two tests, the Judge decided that Banks was still good law, but the MCA 2005 test should be used as a cross-check. If both tests are met, then there will be no problem with capacity. However, if one of the tests is not met, then further steps are needed to establish capacity.
While the analysis conducted by the Judge might be convincing for some, others might reject it as it required HHJ Tindal to fit modern concepts onto a relatively old and arguably obsolete common law test.
The case is also interesting regarding the method of witnessing a will.