An interesting judgement was published this week, the ongoing case of Clitheroe v Bond. It was particularly interesting for the lengths that Mrs Justice Faulke went, to clarify the correct test to use when assessing a person’s mental capacity to create a will otherwise known as testamentary capacity. When a will writer or solicitor is instructed to create a will, they must satisfy themselves that the person has the mental capacity to create a will if they are aged or have been seriously ill. This is known as the golden rule and adhering to it can avoid serious consequences when the person dies and their will is executed.
Since the introduction of the Mental Capacity Act 2005 (MCA), there have been ongoing discussions whether the test for testamentary capacity should be the same test as that in the MCA. Before the MCA was introduced, people still lacked capacity to make decisions of course, but there wasn’t a single test to determine a person’s capacity. Instead, common law tests were used and this was the case for testamentary capacity. In fact, the same test for testamentary capacity has been used for around 150 years.
The test for testamentary capacity is known as the Banks Test or Banks v Goodfellow Test after the case where the test was established. There are four arms to the test for testamentary capacity as follows. The person who is creating the will should:
By comparison, the test for capacity in the MCA is quite different. For a person to lack capacity under the MCA it needs to be demonstrated they they have an impairment of their mind or brain that prevents them from understanding, retaining, using or weighing up the salient information necessary to make the decision. Or that they can’t communicate their decision by any means. On occasion, practitioners have combined the two tests and used the four arms of the Banks Test as the salient information for the MCA. Not only is this incorrect, it can lead to an erroneous conclusion. If a person was assessed using both of these frameworks, the outcome might be very different. It is possible that a person would have testamentary capacity using the Banks Test but not if they were assessed using the MCA. Highlighting why it is important to use the correct test when assessing a person’s testamentary capacity.
Another difference between the two tests is whether mental capacity is assumed or not. One of the guiding principles of the MCA is the presumption of capacity. To assume that the person has capacity to make the decision unless it is reasonably believed that the lack capacity. Under the Banks Test for testamentary capacity, the golden rule applies. Anyone who is aged or has been seriously Ill must have their testamentary capacity assessed, whether or not their is reasonable belief that they lack capacity.
In Clitheroe v Bond, Mrs Justice Faulke made it very clear that the correct test is still the Banks Test and NOT the test in the MCA. She highlighted the tensions when faced with two different tests for capacity. Although the test for capacity is the Banks Test, if a person lacks testamentary capacity, a statutory will can be ordered by the Court of Protection. A court set up under… The MCA.
Mrs Justice Faulke also considered the fourth arm of the Banks Test, delusions. A delusion must be an irrational and fixed thought. A seemingly obvious way to test whether a thought is fixed is to try and persuade the person away from that thought. Mrs Justice Faulke said this isn’t the correct approach and concluded:
“What I consider to be the correct approach would allow a holistic assessment of all the evidence. This would take account of the nature of the belief, the circumstances in which it arose and whether there was an evidential basis for it, whether it was formed in the face of evidence to the contrary, the period of time for which it was held and whether it was the subject of any challenge.”
There remain different mental capacity tests for different decisions and when assessing capacity, it is vital for practitioners to know which test is the correct one. Failure to apply the correct test could result in an incorrect testamentary capacity assessment.