Based upon the cases’ facts, Walker v Badmin initially seemed atypical and unlikely to have any major effect on UK Law. The High Court case, however, appears to have confirmed, beyond doubt, that the capacity test set out in the Mental Capacity Act 2005 (MCA) has been overridden by Banks v Goodfellow.
A woman who was suffering from a brain tumour made a will just 5 weeks before her death. The 53 year old gave her property on a life interest trust to her partner, and to benefit her daughters on his death. The residue of the estate was then divided between her partner and two daughters. Her partner would receive 50% and the daughters would get 25% each in equal shares. The daughters challenged the validity of the will on testamentary capacity grounds. The claimants testified that their mother would never have made the will in those terms if she wasn’t suffering from the brain tumour.
The traditional test for capacity was chiselled into UK law during the 1870 case of Banks v Goodwell, which laid down that a testator possesses capacity to make the will if:
- He understands the nature of the will and its effects;
- He understands the extent of the property he is disposing;
- He is able to comprehend and appreciate the claims to which he ought to give effect and is not affected by any disorder of the mind that influences his will in disposing of his property.
This judgement has been followed in many later cases, including leading case law in the area such as Re Beaney (1978) and, consequently, was a relatively unchallenged area of UK law for a significant period of time. However, the 2005 Mental Capacity Act introduced a new statutory test for capacity. The test is set out in section 2(1) of the act and lays out a two tier test:
- Does the person have an impairment or disturbance of mental function?
- If so, does that impairment or disturbance mean the person is unable to make the decision in question?
This has led to querying, in both cases and articles, whether the Banks v Goodwell test has been superseded by the Mental Capacity Act 2005. The most common view of practitioners is that the MCA should not replace Banks v Goodwell, but compliment it. However, the position in the courts remained unclear and seemed to go against this idea of case and statute law complimenting each other.
For example, the recent case of Key v Key (2010) ruled that an elderly man did not have capacity and the will was declared invalid. The incapacity was held to be caused by low-level cognitive impairment and a mental order caused by the bereavement from the death of his wife shortly before the will was changed. This reasoning seems more based upon the MCA test and does not appear to fit comfortably in any of the limbs of the capacity test in Banks v Goodfellow.
Consequently, the position of the courts remained unclear until the judgement in Walker v Badmin. The judge, Nicholas Strauss QC, concluded that the MCA test is the more stringent of the two tests as the MCA requires the testator to understand all of the information relevant to a decision, whereas case law only needs them to appreciate the claims which they should give effect in the will. Strauss said the threshold for testamentary capacity was low to allow elderly people to make a will in their declining years and Parliament would not reverse this without announcing it.
Strauss also concluded that the wording of the MCA infers that it was only intended for the courts to make decisions for living persons who are incapable, not the deceased who have made a will. In addition, the rest of the act deals with assisting the living with decision making, not assessing already made decisions. Thus, Strauss concluded, the MCA does not override existing case law and Banks v Goodfellow remains in effect. In applying the common law test Strauss ruled against the claimants. He found no evidence to suggest the testator didn’t understand the nature of the will. She was well aware of the nature and extent of her assets, appreciated the claims to which she might give effect and her love for her daughters was reflected throughout the will.
The finding in Walker v Badmin provides concrete judicial clarity that the test to be applied in any challenge to the validity of a will based on capacity remains with common law.
