Jennifer Baker & Anor v Diane Hewston

This case determined the validity of a last will dated 23 May 2020 and addressed the interaction between the common law test of testamentary capacity in Banks v Goodfellow (1870) and the Mental Capacity Act 2005 (MCA). The judge held that the common law test (as modernised in subsequent authority) governs probate challenges, but that ss.2–3 MCA are broadly consistent with that test and may be used as a cross-check. The court applied the Banks criteria (ability to understand the nature and effects of the will, the extent of the property, and the claims to which the testator ought to give effect, and freedom from causative delusions or disorders) and admitted the 23 May 2020 will to probate as valid. The judge made subsidiary findings on earlier wills: the December 2009 will was invalid, while the 2010, 2014, 2017, 2018 and 2020 wills were proved to have been made by a testator with testamentary capacity.

This was a first-instance probate trial concerning the validity of multiple wills made by a testator (referred to as "Stanley") between 2009 and 2020. The claimants (two executors under the 2020 will) sought a pronouncement of validity and the grant of probate for the 23 May 2020 will after the defendant (a former partner and potential beneficiary under earlier wills) initially objected on the ground that the testator had dementia and lacked capacity for wills made from 2014 onward.

Background and parties:

• Stanley (born 1929, died 5 August 2020) made several wills between 2009 and 2020 with materially different dispositions, affecting beneficiaries including his children, grandchildren and a long-term partner's daughter (the defendant).
• The claimants were the executors named in the 2020 will; the defendant objected to probate on capacity grounds but later compromised and received a payment from the estate.

Nature of the application: The executors applied for a declaration of validity/admission to probate of the 23 May 2020 will under contentious probate procedure. The court was asked also (with consent of the parties involved, and for procedural fairness to an absent beneficiary) to consider the validity of earlier wills.

Issues framed:

• What is the proper test for testamentary capacity in probate proceedings — the common law Banks v Goodfellow test or the MCA ss.2–3 test?; and how do they interact?
• Did the testator have testamentary capacity when making each of the wills from 2009 to 2020?
• What weight should be given to solicitor practice (the so-called "Golden Rule") and contemporaneous medical notes?

Evidence: The court heard evidence from the solicitor who drafted the 2020 will and from the two attesting witnesses. Documentary evidence included medical records, solicitors' file notes and contemporaneous correspondence. One potential beneficiary (Martin) did not participate.

Reasoning and holdings:

• The judge concluded at first instance that probate validity disputes remain governed by the common law Banks test, but that ss.2–3 MCA are aligned with and may be used by analogy as a cross-check. The judge explained how the first three limbs of Banks map to the s.3(1) MCA requirements and how the fourth limb maps to s.2(1) causation analysis.
• Applying that approach to the facts, the December 2009 will failed on capacity on the balance of probabilities. The 2010 will was valid; the June 2014 will, despite being harsh to the defendant, was valid; the 2017 (July) and 2018 wills were valid; and the 23 May 2020 will was validly executed with testamentary capacity.
• The judge admitted the 23 May 2020 will to probate and directed that the absent beneficiary (Martin) be given 28 days to object to the pronouncement, failing which he would be bound by the judgment.

Wider context: The judgment contains a detailed analytical exposition of the relationship between Banks and the MCA, endorsing a pragmatic synthesis to avoid inconsistent outcomes between probate courts and the Court of Protection.

The claim succeeded. The court admitted the last will dated 23 May 2020 to probate, holding that on the balance of probabilities the testator had testamentary capacity for the 2010, 2014, 2017, 2018 and 2020 wills; the December 2009 will was invalid. The judge reasoned that the common law Banks test governs probate proceedings but that ss.2–3 MCA are consistent with and may be used as a cross-check.