Reconciling the Mental Capacity Act 2005 and Banks v Goodfellow- A Comprehensive or Complex Combination?

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14 July, 2023

Baker v Hewston [2023] EWHC 1145 (Ch)

The recent case of Baker v Hewston [2023] EWHC 1145 (Ch) has sparked extensive dialogue regarding the relationship between the test for testamentary capacity as set out in Banks v Goodfellow and the provisions contained within the Mental Capacity Act 2005 (MCA). Additionally, in this case, the court ruled a Will signed and witnessed through a car window during the Covid-19 lockdown was a valid execution despite such having preceded the amendment to the Wills Act facilitating remote attestation.

The claim was being pursued as a challenge to the validity of the Will, with the claimant maintaining that the Deceased lacked testamentary capacity. The concerns raised were based on several factors, including the testator's failure to benefit one of his children under the Will, his advanced age of 91, no adherence to the Golden Rule, his diagnosis of dementia secondary to Pick's disease, a past admission to hospital under the Mental Health Act, and the inability for his Will to have been read to him directly due to the Covid-19 lockdown.

The issues raised surrounded the tests for capacity as set out in Banks v Goodfellow which differs from the provisions set out in MCA. The judge in this case, HHJ Tindal, raised concerns about the divergence of decisions on a single testator's capacity that could be made in different courts dependent on the test applied. The question raised was whether someone could be deemed to not have testamentary capacity as per Banks v Goodfellow test but could, in fact, be deemed to have capacity under the MCA.

HHJ Tindall cautiously proposed a compromise in an attempt to harmonise the common law and statutory approaches towards testamentary capacity specifically.

This judgement, however, sets a precedent that has opened the opportunity for complex discussions and analyses of the relationship between both the MCA and Banks case. Although this could see a change in the approach taken when considering a testator's capacity, it may arguably introduce uncertainty and challenges, especially given the fluctuating nature of capacity and the impact of deteriorating capacity. It remains to be seen how this proposed settlement will be received and whether it will gain practical acceptance in forthcoming cases.

Going forwards, when dealing with claims where a testator's capacity is being questioned, the tests as set out in both Banks v Goodfellow and the MCA should be considered.

If you have concerns about the validity of a will, this judgment emphasises the importance of seeking legal advice from professionals who remain up to date in changes to the law.

Our Contentious Trusts and Probate team at Forbes Solicitors remain up to date with developments in the law, enabling us to provide practical and bespoke advice to both our current and prospective clients.

If you, or anyone you know of, have concerns regarding the validity of a will, please do not hesitate to contact a member of our team who will be able to assist you further.

For more information contact Darcey Black in our Contesting a Will department via email or phone on 01772 220169. Alternatively send any question through to Forbes Solicitors via our online Contact Form.

Learn more about our Contesting a Will department here

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