Jennifer Baker & Anor v Diane Hewston

Testamentary capacity in probate proceedings remains governed by the common-law test in Banks v Goodfellow. Sections 2 and 3 of the Mental Capacity Act 2005 do not replace that test, but are broadly consistent with it and may be used as a cross-check. A duly executed will which is rational on its face attracts a presumption of capacity, although a real evidential doubt may displace it. The Golden Rule is prudent professional guidance, not a rule of law, and failure to obtain a medical assessment does not invalidate a will.

The claimants, executors of Stanley’s final will, sought probate of a will dated 23 May 2020. The defendant initially objected because Stanley had dementia and had made several changing wills. She later withdrew the objection as part of a compromise, but the court was asked to address the validity of the relevant wills because another beneficiary had not participated.

The central issue was the relationship between testamentary capacity under Banks v Goodfellow and sections 2 and 3 of the Mental Capacity Act 2005, including the significance of the absence of a medical assessment and explanation of the final will.

1. Applicable law. Testamentary capacity in probate proceedings is governed by the common law. The Mental Capacity Act 2005 does not apply to the assessment of capacity to make a will, save where the decision is made for the purposes of the Act, such as in Court of Protection proceedings or in relation to litigation capacity. Sections 2 and 3 may nevertheless be used by analogy as a cross-check within the Banks approach.
2. Relationship between the tests. The modern formulation of Banks requires ability to understand the nature and effects of making a will, understand and retain the extent of the property, understand and weigh the claims of those included and excluded, and ensure that no mental disorder or delusion causally influences the disposition. The statutory functional approach is broadly consistent.
3. Presumption and explanation. A duly executed will which is rational on its face attracts a presumption of capacity. A real evidential doubt may displace that presumption. Capacity is decision-specific and explanation depends on the nature and complexity of the will. The Golden Rule is a rule of practice, not law.
4. Application. The 2009 will was invalid because serious concerns and the absence of contemporaneous evidence prevented capacity being established. The 2010, 2014, July 2017, 2018 and 2020 wills were valid. Their terms were rational, the evidence showed understanding of the relevant property and claims, and no causative mental disorder or delusion was shown.
5. Order. The will dated 23 May 2020 was admitted to probate and superseded the earlier wills. Martin was given 28 days after service to object, failing which he would be bound by the pronouncement.

First-instance decision. No appellate history is stated in the judgment.