A Historical Perspective on Testamentary Capacity

Testamentary capacity refers to the ability of an individual to make or alter a legally valid will. Only persons aged 18 or over who possess mental capacity under the terms of the Mental Capacity Act 2005 (MCA) can be said to possess testamentary capacity. 

According to the Oxford Dictionary of Law, in order to have testamentary capacity, 

The testator must, at the time he makes the will, understand the nature of the document, the property of which he is disposing, the persons who have a natural claim to provision from his estate, and the manner in which he provides for his estate to be distributed.

For medico-legal professionals, there are two primary scenarios in which issues regarding testamentary capacity might come up:

  • At the time of making a will, a medico-legal expert might be instructed by an individual or a solicitor to witness the signing and to provide a letter confirming that the person has mental capacity.

  • After a will has been made (and, potentially, after the person has died), a medico-legal professional may be asked to provide an expert assessment about the capacity of the person at the time the will was made. This is a retrospective assessment of capacity, and can arise in instances where a will is challenged or where changes were made at a late stage in a person’s life.

The Early History of Testamentary Capacity

The history of testamentary capacity extends back to the judgment provided by Lord Chief Justice Alexander Cockburn in the landmark case, Banks v. Goodfellow (1869-70). This case concerned the validity of the will of John Banks, who at various times in his life had been confined to an asylum, and who “remained subject to certain fixed delusions.” In today’s terms, Banks would most likely have been diagnosed with paranoid schizophrenia. Banks believed that a man who had long since died continued to pursue him. He also thought that he saw devils and evil spirits wherever he went. Banks had intended to leave his property to his sister, but she died before him, so he changed his will in order to make his niece the inheritor of his estate. After he died, the court was asked to assess whether, in making this decision, Banks was “so far master of his intentions and free from delusions as would enable him to have a will of his own in the disposition of his property, and act upon it.” The jury found in favour, declaring that the will was “good and valid.” The judgment stated that Banks was of “sound mind” and understood the possible consequences of his decision at the time at which it was made. In so doing, the case presciently highlighted one of the key principles of the MCA: in order to be adjudged to have capacity, a person need only be able to understand, retain, weigh and communicate their decision at the material time it is taken.

In pronouncing his judgment, Lord Chief Justice Cockburn laid the basis for the legal understanding of testamentary capacity that is still in place today, stating: 

It is essential to the exercise of [the power to make a will] that a testator shall understand the nature of the 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, pervert 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 out a disposal of it which, if the mind had been sound, would not have been made.  

The basic tenets of this judgment continue to hold in matters relating to testamentary capacity today, and a person deemed to have the mental capacity to make a will is still sometimes referred to as “Banks-competent.”

Testamentary capacity and bereavement 

A gloss on Banks v. Goodfellow was provided by the case of Key v. Key in 2010. This case involved a claim made by Richard Key and John Key that their late father, George Key, had lacked testamentary capacity when he made changes to his will. George made the changes aged 89, one week after the death of his wife of 65 years. It was noted that the solicitor who received instruction for the changes made no attempt to assess George’s capacity, deeming that grief and bereavement were not in and of themselves serious enough to affect capacity. 

In response, the Judge noted that “psychiatric medicine had come a long way since 1870” (the date of Banks v. Goodfellow) and that while bereavement might not have been deemed sufficient cause for a mental disorder in Victorian England, it would certainly be recognised by many psychiatrists today as capable of giving rise to a disorder. It was noted that George was not simply sad following the death of his wife but devastated; his affective state was bordering on depression. 

The case was significant for noting that, even though George may have been deemed capable of understanding the significance of his decision at the time of making it, his decision-making power was likely affected by his depression. It was not that he lacked the capacity to understand “what his property was, and even who his relatives and dependants were.” Rather, he lacked the “mental energy” to be able to make decisions using the kind of rigour and systematic thinking that he would otherwise have applied. The case highlights the need for an expanded understanding of how not just comprehension, but also decision-making, can be influenced by affective disorders. 

The MCA in relation to Banks v. Goodfellow

There have been some questions raised in recent years about the relationship between the MCA and the decision in Banks v. Goodfellow. These were largely answered in the case of Raymond Allen James v. Karen James & Others (2018). In this case, Charles James, who had died in 2012, had left provisions for his wife and two daughters, but not for his son Sam. In response, Sam claimed that Charles’ will was invalid because he did not have testamentary capacity. In making his claim, Sam argued that Banks v. Goodfellow did not apply and that the MCA should supersede the judgment outlined in the case. Sam claimed that his father would not have passed the two-stage capacity test outlined in the MCA, even though his father understood the nature of his property and the significance of his decision. In other words, he may well have been Banks-competent, but it was argued that he should have been assessed as lacking capacity under the terms of the MCA. The Judge ruled, however, that the provisions of the MCA are “concerned with assessing the mental capacity of living persons.” When a court is asked, after death, to consider whether a person had the capacity to make a will, Banks v. Goodfellow should apply.

Summary

The two pillars of testamentary capacity remain the MCA and the Banks v. Goodfellow case. The latter states that a testator must understand the nature of making a will, as well as its effect. The testator must also comprehend both the extent of their property and the possible claims over it. Recent cases regarding testamentary capacity have highlighted two points. First, there is a need for a broader understanding of the ways in which decision-making power—rather than comprehension—can be influenced by affective disorders such as depression. Second, while the MCA governs cases concerning the testamentary capacity of living persons, Banks v. Goodfellow applies in instances where the court is asked to assess the capacity of a person now deceased.


This post is provided for general information purposes and is not intended to cover every aspect of the topics with which it deals. It does not constitute medical, legal, or professional advice, nor is it necessarily an endorsement of the views of Professor Elliott, the U.K. Centre for Medico-Legal Studies, its employees, or its affiliates. Though we aim to ensure that all information is accurate at the time of posting, we make no representations, warranties or guarantees, whether express or implied, that the content in the post is complete or up to date.

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