Mental Capacity - what is the correct test?
Wednesday, 7th January 2015
In the recent case of Walker and another -v- Badmin and others  it was held that the correct test to rely upon for testamentary capacity, where the dispute is in relation to the validity of a will, is the common law test as set out in Banks v Goodfellow  and not, as some commentators suggested, the test in the Mental Capacity Act 2005.
In this case the two daughters of the deceased claimed that their mother lacked capacity at the time she executed her will. By that will, the deceased left her share of former matrimonial assets on trust to her partner of two years (who was 23 years her junior) for life and thereafter in equal shares to her daughters. The residue of her estate was divided as to 50 percent to her partner and 25 percent to each of her daughters.
Judge Nicholas Strauss QC observed that there had been a tendency in recent cases and textbooks to suggest that the provisions of the Mental Capacity Act 2005 were simply a modern restatement of the common law test, and that the provisions of the Act would gradually replace the common law test, but he concluded that although the tests overlapped and would often produce the same result, that would not always be the case, and he therefore held that the common law test in Banks still applies.
This will be welcome clarification for practitioners and members of the public alike and clarifies a point of law that was at risk of becoming unnecessarily complicated. The Law at present therefore is that the correct and only test for determining mental capacity to make a Will is the Banks v Goodfellow test.