Banks & the MCA: a significant reconciliation?

John Aldis
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John Aldis


In Baker v Hewston [2023] EWHC 1145 (Ch), HHJ Tindal makes some potentially significant comments on the relationship between Banks v Goodfellow and the Mental Capacity Act 2005 (“MCA”).

Real doubts were raised about the testator’s testamentary capacity and knowledge & approval of his 2020 will because: 

  1. He gave instructions that he only had 2 children (failing to mention his third child whom he was disinheriting); 
  2. He was 91 years old and the Golden Rule was not followed; 
  3. He had frontal lobe dementia secondary to Pick’s Disease; 
  4. In September 2009 he had been compulsorily admitted to hospital (for a short time) under s.2 Mental Health Act 1983; and
  5. The will was not read over to him (because the first Covid-19 lockdown was imposed shortly after giving instructions).

HHJ Tindal pronounced for the 2020 will, not least because: 

  1. There was no medical evidence that the testator’s decision making was affected by any mental disorder or delusion; 
  2. The solicitor who drafted the will (a STEP practitioner) had no concerns about the testator’s capacity; and 
  3. In 2019 the testator had signed a letter explaining why he intended to exclude his third child from a draft will (which he did not execute – perhaps because that solicitor insisted that he have a mental capacity test) [73-75].

More significantly, in [11]-[50], HHJ Tindal, who sits in the Court of Protection (“COP”), seeks to reconcile the MCA with Banks v Goodfellow and Parker v Felgate with a scholarly review of the relevant probate and COP decisions. 

He describes the problem with having different tests in this way [28]:

“[I]t follows from my first point that if the approach to testamentary capacity in common law is substantively different from that in the MCA, as the Law Commission notes in ‘Making a Will’ at ps.2.57-8, there could be different decisions about the capacity of the same (living) testator for the same will in different Courts. The Chancery Division could find P had capacity for a will at common law so it was valid; whilst the Court of Protection could find that P did not have capacity and so could make a statutory will. Still more seriously, as Falk J accepted in Clitheroe at p.75, if the other way around and the testator lacked capacity at common law but not under the MCA, in theory no valid will could be executed at all. Far from a theoretical risk, if there is a real difference on the presumption of capacity (which I consider below), that risk could be quite common. In my view, this would be an impracticable, illogical or inconvenient result…”

HHJ Tindal “tentatively” proposes this “compromise solution” [22]:

“22.1 ss.2-3 MCA do not strictly apply to testamentary capacity in Probate cases;

22.2 ss.2-3 and general common law on capacity are aligned (and consciously so);

22.3 ss.2-3 are broadly consistent with the common law on testamentary capacity;

22.4 ss.2-3 and the Banks criteria are consistent and can ‘accommodate’ each other;

22.5 ss.2-3 are ‘appropriate’, in a similar sense as in MM to be included by analogy within the common law approach to testamentary capacity in Probate cases.”

The highlight of the judgment is where HHJ Tindal proposes this reconciliation:

“41. This leads to my fourth point. Given differences between ss.2-3 MCA and the common law on testamentary capacity are over-stated, I consider there is a straightforward way of reconciling them and for ss.2-3 MCA (which are ‘issue-specific’) to ‘accommodate’ the common law test. That is for the first three limbs of the Banks test to be treated as the ‘relevant information’ under s.3 MCA and for the fourth limb to map onto s.2 MCA.

43. …[G]iven the consistency between testamentary capacity at common law and ss.2-3 MCA, were it assessed under the MCA e.g. by the Court of Protection, the ‘relevant information’ would be the same as the first three limbs of Banks: [a] to understand ‘the nature of making a will and its effects’ (compare [a] in RI) [b] to understand and retain (‘recollect’ for a short period – s.3(3) MCA) ‘the extent of his property’ (compare [e] in RI); and [c] to weigh ‘the nature and extent of the claims upon him, both those whom he is including in his will and those he is excluding from it’ (compare [g] in RI). I am fortified in this view by its consistency with the view of the Law Commission in ‘Making a Will’ at p.2.55 (which I consider is of significant weight).

44. However, whilst the Law Commission suggests at p.2.95 that the rule in Parker v Felgate endorsed in Perrins is arguably inconsistent with the MCA, I suggest they can also be reconciled. As Lord Stephens said in JB at p.64, capacity can fluctuate over time and s.2(1) MCA applies ‘at the material time’ which is ‘decision-specific’. In the context of deciding on a will, the ‘relevant information’ in Banks applies at that ‘material time’. But if a testator has capacity but it deteriorates before execution, at that ‘material time’, the ‘relevant information’ for executing a will is just that listed in Parker/Perrins. After all, information need only be retained ‘for a short period’ under s.3(3) MCA. There is no wider ‘memory test’ under ss.2-3 MCA than at common law (see Hoff and Simon).”

In short, HHJ Tindal has re-opened a can of worms which many Chancery practitioners were happy to see closed (because it is convenient not to have to engage with COP decisions on the MCA). It remains to be seen whether his proposed reconciliation will gain traction and have any practical impact. However, in my opinion, it provides a helpful way of mapping a bewildering range of important COP cases onto the 4-limb test in Banks.

Written by John Aldis