what capacity is required to make a valid will

What Capacity Is Required to Make a Valid Will

Will claim Solicitors, specialist no win no fee will dispute and will contest Solicitors, discuss the legal requirements defining capacity make a legally valid Will

Contesting a Will with – a restatement of the test for capacity in Will dispute and Will contest claims

We have covered this extensively in previous blogs, but in particular, the following:

What Is the Test for Legal Testamentary Capacity – Will Claim Solicitors

In broad terms the capacity test is set out in an old decision called “Banks v Goodfellow (1870) LR 5 QB 549”. It has broadly stood out on its own notwithstanding the advent of the Mental Capacity Act 2005 [“MCA”](which has its own general definition of capacity) and which came into force in 2007.

In a new decision of the High Court (first instance) His Honour Judge Tindal, goes much further that most other decisions, in analysing the relationship between the existing common-law test for testamentary capacity (capacity to make a Will) and seeks to draw in how the statutory test under the MCA interacts with it.

The decision is called “Jennifer Baker and Emma Spiers v Diane Hewston (2023) EWHC 1145 (Ch)”. It can be found in BAILII as follows:

Baker & Anor v Hewston [2023] EWHC 1145 (Ch) (05 May 2023) (

We comment further on this below. However (and for reference) there is a very good list of the leading cases in this field at paragraph 12:

Indeed, Banks had so ‘stood the test of time’ that Williams & Mortimer & Sunnicks on Executors, Administrators & Probate (21st Edition 2018), Williams on Wills (10th Ed 2 nd Supp 2021) and Theobold on Wills (19th Edition 2021) do not refer to very much 20th Century authority on testamentary capacity, especially above High Court level. Yet in the last 20 years, according to Westlaw, Banks has been considered by the Court of Appeal no fewer than seven times: Sharp, Hoff v Atherton [2005] WTLR 99 (CA), Perrins v Holland [2011] Ch 270, Burgess v Hawes [2013] WTLR 453, Simon v Byford [2014] WTLR 1097, Burns v Burns [2016] WTLR 755 and most recently Hughes v Pritchard [2022] Ch 33. In the High Court, Banks has been analysed by (among others) Lord Briggs (as he now is) in Re Key [2010] 1 WLR 2020; Fancourt J in Re Templeman [2020] WTLR 441; Falk LJ (as she now is) in Re Clitheroe [2021] EWHC 1102 (Ch); and most recently by Zacaroli J in Re Clarke [2023] EWHC 14.

A new method of testing legal capacity to make a Will?

His Honour Judge Tindall in “Baker and Spiers v Hewston” above puts forward a persuasive and lengthy argument to the effect that the test for capacity under the MCA does and/or should interact with the common law test (be taken into account). This is though another “first instance” decision and may only be of limited influence.

At paragraph 27 of his Judgment he makes it clear that primarily the common law test on capacity must apply. Notwithstanding he suggests that the MCA test(s) are “broadly consistent” (paragraph 46) and finds (at paragraph 49) that there was “no relevant distinction” between the MCA and the common law test. He accordingly suggests that whilst the common law (Banks v Goodfellow) test must be applied, the MCA should be used as a “cross-check” (paragraph 49):

Whilst a Probate case would involve ‘accommodating’ ss.2-3 MCA within the common law not vice-versa, it does not involve applying the MCA and using Banks to put ‘flesh on bones’, but rather applying Banks but using the MCA as a ‘cross-check’. If the MCA suggests a different result, that does not trump the common law but suggests further consideration. This is using the MCA to ‘supplement’ the common law in HHJ Dight’s word in Fischer v Diffley [2013] EWHC 4567 p.25; and indeed, taking a ‘flexible approach’ as suggested by Mr Rosen QC in Bray v Pearce (2014) (as quoted in James).

He goes on to repeat this as a possible new method of assessing capacity in paragraph 50:

Returning one last time to p.4.33 of the MCA Code of Practice, I respectfully agree that ‘The Act’s new definition of capacity is in line with the existing common law tests, and the Act does not replace them” and this remains correct. This was the view of Lady Hale with capacity to litigate in Dunhill and of Munby J on various different capacity decisions in MM. Yet, in this context, I do not consider it ‘appropriate’ to ‘adopt’ ss.2-3 MCA in place of the common law as Munby J did in MM – which I note was the argument rejected by Mr Strauss QC in Walker, HHJ Matthews in James and Falk LJ in Clitheroe. Rather, I consider it ‘appropriate’ more cautiously to use ss.2-3 MCA as a ‘cross-check’ to the Banks test at common law, but for the same reasons as Munby J in MM – because ss.2-3 MCA and the common law are analytically consistent and to avoid inconsistent application of them – as the Law Commission discussed in 2017. Indeed, ‘adoption’ was the original idea of Lord Burrows and his Law Commission colleagues in 1995 who said ‘common law judges would consider [the new statutory definition] and then adopt it if they saw fit’, although as I have explained, the gap between their draft Bill and the common law closed between 1995 and the MCA in 2002 on both sides: including Hoff. Lord Burrows considers such ‘interaction’ between common law and statute in ‘Thinking About Statutes’ (2018). At pg.53 he cites Lord Hoffmann (as he had become after Re K) in Johnson v Unisys [2003] 1 AC 518 (HL) p.37:

[Judges’] traditional function is to adapt and modernise the common law. But such developments must be consistent with legislative policy…in statutes. The courts may proceed in harmony with Parliament but there should be no discord.

To end this overlong analysis, in Lord Burrows’ book at pg.51, he gave an example of applying a statute by analogy which may be reassuring to Chancery lawyers. It goes back to the time of Banks: applying statutes of limitation by analogy with issues of delay on equitable relief in Knox v Gye (1872) LR 5 HL 656, where Lord Westbury said at p.673:

…[A] court of equity acts by analogy to the Statute of Limitations…where the suit in equity corresponds with an action at law…in the words of the statute, a court of equity adopts the enactment of the statute as its own rule of procedure.

It is this sort of familiar exercise I suggest with the MCA. As with the ‘convergence’ of common law and statute in the lead up to the MCA, this ‘analogy’ approach would smooth any legislative change to Banks. It may even show Parliament that buttressed by the MCA and with some of its language updated, Banks remains as vital as ever.

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