Contentious probate refers to legal disputes in concerning the administration of a deceased’s estate. The most common kind of dispute is where a beneficiary contests the validity of a will. There are many reasons why a beneficiary may contest a will, such as perceived unfairness, undue influence, or manipulation of the deceased, however this article will focus on one of the most frequently litigated issues – testamentary capacity.

Disputes regarding mental capacity typically turn on contested issues of fact, and it is frequent for parties to present conflicting accounts of the testator’s mental state. This combined with concerns about costs and the general stress of litigation, means it is vitally important for parties to properly assess the merits of a case at an early stage. Contentious probate cases continue to come before the courts, and from those that reach trial, there are lessons to be learnt on the legal issues which are likely to influence the outcome.

Is the test for testamentary capacity common law or statutory?

Sections 1 to 4 of the Mental Capacity Act 2005 (‘MCA 2005’) put the test for mental capacity on a statutory footing. It has been suggested that the MCA 2005 has superseded the common law principles.

However, in James v James, the High Court held that in considering whether a testator had the capacity to make a will, the Banks v Goodfellow test should be used. James v James was applied in Clitheroe v Bond, in which Lady Justice Falk stated there was no good reason to depart from the well-established case law. The judgment in Clitheroe v Bond was later appealed on the grounds that the MCA 2005 should have been applied, yet the judge still upheld the decision to apply the Banks principles. Although, in Baker v Hewston, His Honour Judge Tindall commented that the MCA provides a useful ‘cross-check’ when capacity is considered in probate claims.

The Common Law Test – Banks v Goodfellow

The test in Banks requires that a testator must:

1.  Understand the nature of act and its effects

It is essential that a testator shall understand fully the nature of their will and its effects. The extent of this principle will generally vary depending on the complexity of the will and the testator’s affairs. However, it is not required that the testator should understand collateral consequences, including the significance of particular property to others (Simon v Byford).

2.  Understand the extent of property to be disposed of

This principle is only applied in a general sense given a testator’s estate will inevitably change over time. In Scammell v Farmer, it was sufficient that the testatrix could only give a broad indication of the value of her estate, consisting primarily of a house, due to the uncertainty of the property market.

3.  Comprehend and appreciate any moral claims to their estate

In Banks, Cockburn CJ viewed will-making to involve a moral responsibility, albeit one within the testator’s unfettered discretion to discharge well or badly. However, in Todd v Parsons, it was viewed that if the testatrix had temporarily forgotten a promise, that would likely not be decisive in determining a lack of capacity to appreciate any moral claims.

4.  Not be any disorder or delusion which brings about a different disposal than if the mind were sound

It is a requirement that no disorder or delusion shall influence the testator’s will to bring about a disposal of property which would not have been made if their mind were sound. In Ball v Ball, a delusion was present where no person in possession of their senses could have believed what the testator believed. However, a simple mistaken belief would not amount to a delusion. Falk LJ stated that the court will “take into account of the nature of the belief, the circumstances in which it arose and whether there was an evidential basis for it, whether it was formed in the face of evidence to the contrary, the period of time for which it was held and whether it was subject to any change” (Clitheroe v Bond).

The case law surrounding testamentary capacity undoubtedly highlights the importance placed on Banks v Goodfellow within the courts. However, it is important to note that whilst these principles are at the core of capacity, each case will turn on its own facts.