Testamentary Capacity Assessments: A Guide for Practitioners

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Health and social care professionals will be familiar with mental capacity assessments. During the course of their work, social workers will regularly assess whether a person has the capacity to make decisions in relation to where they live, who they live with and the care they receive. Occupational therapists and Physiotherapists might assess whether a person has capacity in relation to a proposed therapeutic approach. Nurses may assess whether a person has capacity in relation to a proposed vaccination. But what about decisions that aren’t as common during the course of your everyday work?  For instance, you may be asked to assess a person’s capacity in relation to creating a will; whether a person has testamentary capacity.

This brief guide to testamentary capacity for professionals will explain how to assess a person’s testamentary capacity and the differences between assessing capacity for this decision and some of the more common decisions relating to health and social care decisions.

Most health and social care professionals will be familiar with the Mental Capacity Act 2005 (MCA). They will be familiar with the 5 principles of the MCA found in section 1:

1. A person must be assumed to have capacity unless it is established that he lacks capacity.
2. A person is not to be treated as unable to make a decision unless all practicable steps to help him to do so have been taken without success.
3. A person is not to be treated as unable to make a decision merely because he makes an unwise decision.
4. An act done, or decision made, under this Act for or on behalf of a person who lacks capacity must be done, or made, in his best interests.
5. Before the act is done, or the decision is made, regard must be had to whether the purpose for which it is needed can be as effectively achieved in a way that is less restrictive of the person’s rights and freedom of action.

They will also be aware that a person lacks capacity to make a particular decision if it can be demonstrated that they can’t do any of the following:

1. Understand the information relevant to the decision.
2. Retain that information.
3. Use or weigh that information as part of the process of making the decision, or communicate their decision (whether by talking, using sign language or any other means).

The assessment framework in the MCA is the same framework for most health, welfare and financial decisions. However, there are some decisions where the framework in the MCA can’t be used and testamentary capacity decisions is one such example.

Why is Testamentary Capacity Assessed Using a Different Test?

Decision-making and assessing a person’s mental capacity to make decisions came to the fore nearly 20 years ago with the introduction of the MCA.  It won’t surprise you though that people (and the courts) have been making decisions for much longer than 20 years!  Before the introduction of the MCA, common law tests were used to decide if a person had the ability to make decisions and testamentary capacity was one such test.  This test has been revisited by judges ever since the introduction of the MCA and discussions remain ongoing as to whether testamentary capacity should fall within the scope of the MCA.  Each time it has been addressed in court, it has been concluded that it shouldn’t, and the long-standing test referred to as the Banks Test or Banks v Goodfellow Test remains. If you’d like to read a recent cases where this has been discussed, you may like to read the judgement in Clitheroe v Bond. In Clitheroe v Bond, Falk J concluded, “…the Banks test has not been overridden by the MCA. Further, there is no sufficiently good reason to depart from well-established case law, and I also have significant doubt as to whether it would be possible for this court to do so even if it were so minded.”

When judges interpret legislation, they are sometimes required to identify what the intentions of Parliament were when they introduced a piece of legislation. Did Parliament intend for the MCA to supersede the Banks v Goodfellow test? So far, the answer has been a consistent no, but that could of course change in future judgements.

There are also principles of both tests that don’t appear compatible such as the presumption of capacity in the MCA and the Golden Rule in the Banks Test. The substance of the golden rule is that when a solicitor is instructed to prepare a will for an aged testator, or for one who has been seriously ill, they should arrange for a professional to satisfy themselves as to the capacity and understanding of the testator, and to make a contemporaneous record of their examination and findings. Compare this to the first principle of the MCA, presume that the person has capacity unless you have a reasonable belief that they don’t.

What is the Banks Test?

Names after the case it originated from, the Banks Test was first established in 1870 in the case of Banks v Goodfellow. There are 4 arms to the Banks Test that must be satisfied. If they are, the person has testamentary capacity. If they’re not, they don’t.

• Understands the nature of the act and its effects
• Understands the extent of the property of which they are disposing in the will
• Can comprehend and appreciate the claims to which they ought to give effect
• Has no delusions influencing their decision.  Delusions that would bring about a disposal of it which, if the mind had been sound, would not have been made.

As you might imagine in language from 1870, it’s a bit wordy. So I’ll unpick it a little below.

How to Apply the Banks Test when Assessing Testamentary Capacity

The first arm of the Banks Test is, the person must understand the nature of the act and it’s affects.

In this case, “the act” is the creation of a will. When someone creates a will, they are creating a document that reflects their final wishes about how their estate will be divided up after their death. Who benefits from the estate, and equally important as we’ll see below, who doesn’t benefit from the estate. When a person creates a will, the expectation is that the executor will ensure that the will is adhered to, by the letter.

The second arm of the Banks Test is to ensure that the person understands the extent of the property of which they are disposing. This of course doesn’t just mean building but everything that the person owns including any investments they may have. It isn’t sufficient to know that there is some money and a house, the value of the estate needs to be understood by the person making the will. It stands to reason, doesn’t it? How can you distribute your estate as you see fair if you don’t know what your estate is?

The third arm of the test is whether the person can comprehend and appreciate the claims to which they ought to give effect. When a person creates a will, it is entirely up to them how they distribute their estate and different factors will affect people’s decisions. For instance, a person might have a very close relationship with one sibling or child and less with another. They might have one child who doesn’t need financial support and another who desperately needs it. They might have a neighbour who sacrificed their time to ensure that they were cared for at home in their final years. All these, and more, will influence a person’s decisions when dividing their estate in a will.

However, there are general assumptions about who might expect to benefit from a person’s will. It was said in the Banks v Goodfellow case,

“The instincts and affections of mankind in the vast majority of instances will lead men to make provision for those who are the nearest to them in kindred, and who in life have been the objects of their affection. Independently of any law, a man on the point of leaving the world
would naturally distribute among his children or nearest relatives the property which he possessed. The
same motives will influence him in the exercise of the right which the law secures to him. Hence arises a
reasonable and well warranted expectation on the part of a man’s kindred surviving him that on his death his effects shall become theirs, instead of being given to strangers.”

Therefore, when a person writes a will, if their wishes aren’t what might be expected, they must understand that this may be challenged in court after their death.

The final arm of the Banks Test is that the person is free from delusions influencing their decision. Now, those who are familiar with the test for capacity in the MCA will be familiar with what has become known as the stage 1 test which explores whether a person has an impairment of the mind or brain which affects their ability to make a decision. Medical terminology has evolved since 1870 and delusional thoughts are considered to be irrational, fixed, false beliefs that conflict with reality. Beliefs that even when presented with the truth, remain and are more than misunderstandings that can be corrected. It must also be out of keeping with the person’s background.

So, why is it important that the correct test for testamentary capacity is used? Well, for obvious reasons an incorrect test won’t be accepted as a satisfactory capacity assessment. However, the two tests have different capacity thresholds. It could be argued the the test in the MCA requires a higher understanding of the information because the person has to be able to retain the information and use it to weight-up the different options. The Banks Test requires the person to understand the 4 arms, nothing more.

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