Jessica Jarvis

Testamentary capacity, the mental ability a person needs to make or alter a will, is a pivotal concept in private client law. Given that questions around this area form one of the most common reasons for will challenges, it’s crucial for practitioners to stay up-to-date with the relevant legal framework. The recent case of Baker v Hewston (2023) offers a fresh perspective on this issue, which we delve into in this post.

Traditionally, since the 1870 case of Banks v Goodfellow, testamentary capacity has been assessed under a specific four-point test. In recent years, the more general capacity test provided by the Mental Capacity Act (MCA) 2005, has given rise to questions about the continuing relevance of the Banks v Goodfellow standard. The Clitheroe v Bond (2021) case confirmed that the old test had “withstood the test of time,” but also highlighted the confusion around having separate tests for different types of capacity.

The Baker v Hewston judgment, however, proposes a pragmatic solution to this quandary, suggesting that both tests can be used together, with the MCA 2005 test acting as a cross-check to the Banks v Goodfellow test.

To illustrate, let’s consider a hypothetical situation: John, an elderly gentleman with signs of early-stage dementia, wants to make a new will. His lawyer must evaluate John’s capacity using both tests.

Under Banks v Goodfellow, John must:

1. Understand the nature of making a will and its effects.

2. Understand the extent of his property.

3. Appreciate the claims to which he ought to give effect.

4. Not suffer from a disorder of mind that perverts his sense of right or prevents the exercise of his natural faculties.

For the MCA 2005, John must:

1. Understand the relevant information.

2. Retain that information.

3. Use or weigh that information in the decision-making process.

4. Communicate his decision.

If John meets the requirements of both tests, it would be safe to assume he has the capacity to create a will. However, if John only meets one of the tests, further steps should be taken to establish capacity (or lack thereof).

The key takeaway from Baker v Hewston is the importance of using both tests to assess testamentary capacity. Moreover, it underlines the necessity for practitioners to thoroughly document the capacity assessment process – via detailed attendance notes and, if necessary, a specialist capacity assessment.

In conclusion, the Baker v Hewston case presents a progressive approach to assessing testamentary capacity, reconciling the historical Banks v Goodfellow test with the modern MCA 2005 test. For legal practitioners, it provides a clear, practical guideline for navigating the complex realm of testamentary capacity, ensuring their clients’ wishes are legally secure and protected against potential challenges.