Testamentary capacity and statutory wills
What happens if a will needs to be written or updated and the individual does not have sufficient mental capacity? In this situation an application can be made to the Court of Protection to apply for what is known as a statutory will.
This procedure was alluded to very briefly in a decision which covered other areas of law, namely that of His Honour Judge Matthews in James -v-James . A self-made man built a farm and haulage business. Following his death a dispute regarding his will arose between the son and his two sisters and mother. The son’s claims for proprietary estoppel and the invalidity of his late father’s will due to testamentary capacity both failed. The learned Judge agreed with the finding in Walker-v-Badmin  that the common law test for testamentary capacity in Banks-v-Goodfellow (1870) has survived the test for capacity in section two of the Mental Capacity Act 2005 (the Act).
The test in Banks-v-Goodfellow to determine capacity is that, for a will to be able to be valid:
“It is essential … that a testator shall understand the nature of his act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect, and, with a view to the latter object, that no disorder of the mind shall poison his affections, avert his sense of right, or prevent the exercise of his natural faculties, that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if his mind had been sound, would not have been made.”
In coming to his decision that the test in Banks-v-Goodfellow applied, the Judge also noted:
“The individual provisions of the Act are concerned with assessing the mental capacity of living persons, and the manner of making decisions thereafter on their behalf when, judged by the terms of the Act, they lacked such capacity. It is solely in pursuing that purpose that it deals with (amongst other things) the arising of the power of the court to make a will for a living person who was been found not to possess capacity. It does not follow from this that the test for judging capacity retrospectively in relation to a will already made must also be governed by the same principles. The two things are different, and the latter does not obviously fall within the scope of the Act as expressed from its provisions.”
It is the view of other commentators, however, that the test in Banks-v-Goodfellow must still be used to assess the testator’s mental capacity before any application is made for a statutory will. The test in Banks-v-Goodfellow is a specific rather than a general capacity test. A testator may be unable to conduct his financial affairs for the purposes of the Act but against that he may still have sufficient testamentary capacity to make a will: the common law and statutory tests are different and are to be used in different circumstances.
This view is also backed up by the Court of Protection’s Practice Direction 9E for applications for statutory wills, which refers to ‘testamentary capacity’.
Logic would dictate that for a person to be found to lack testamentary capacity they would have to fail the Banks-v-Goodfellow test, rather than that in section two of the Act. A better example of when the general test for capacity under section two may be used, as opposed to the common law test of Banks-v-Goodfellow, would be found amongst the other things that an application under the Act can achieve in relation to property and affairs, for example mortgaging the land of a patient or commencing proceedings on his behalf.
It could be said that if section two of the Act were to be applied as the test for testamentary capacity, many more wills will be found to be invalid, and the already busy Court of Protection would have many more applications for statutory wills.
If you would like to discuss statutory wills, the validity of a will, proprietary estoppel or have any other type of wills , trust or inheritance dispute then contact me direct via angelo.micciche@GAsolicitors.com or call 01752 513567.