Mental Capacity Case

Baker & Anor v Hewston (Headnoted Version)

Testamentary capacity – common law and statutory tests – whether Banks v Goodfellow and Mental Capacity Act 2005 tests could be reconciled 

A man had had three children and eight grandchildren and had had two partners who had died before him.  He made six wills (with one in 2009 and drafts in 2017 and 2019) in one decade with family beneficiaries shifting in and out of inheritance.  In 2014, his partner’s daughter had been assured of her half of the home he had shared with her mother which had been provided for in a will made in 2010.  She was then disinherited in a will made later in 2014.  A further will was made in 2020, shortly before the testator died.  The partner’s daughter objected to the 2020 will being admitted to Probate on the basis that the man had been diagnosed with dementia for several years and did not have mental capacity to make any wills from 2014 onwards. She required the executors to prove the validity of the 2020 will, which disinherited the man’s son. She withdrew her objections at trial as part of a compromise that she would receive a payment from the man's estate.  The man’s son did not participate in the proceedings. 

Held – recording the compromise – 
(1) It was appropriate for the court to give a judgment, rather than simply making an order ending the proceedings because (1) it would be unfair to pronounce on the 2020 will without considering the others in circumstances where the partner’s daughter had invited the court to pronounce upon the earlier wills of which the son was a beneficiary, and the son was affected by the validity of the 2020 will, such that it was appropriate to give him an opportunity to object within 28 days to pronouncement of its validity by sending him the judgment, failing which he would be bound by it under CPR 19.13; (2) whilst the son had not participated in the litigation and the partner’s daughter had now settled it, it was understandable why she was concerned that the testator’s chopping and changing may have been related to his dementia diagnosis, so it was necessary to explain why his decisions in his last decade had more to do with his caprice than his capacity; (3) the specific facts of the case raised acutely whether or not there was a 'presumption of testamentary capacity' and the significance of the absence of explanation of the will to the man, on which issues the approaches of the common law and the Mental Capacity Act 2005 (‘MCA 2005’) were said to be different. Since the litigation was compromised (but a judgment was still needed), it seemed to the court a good opportunity to discuss in a little detail a potential compromise between Banks v Goodfellow (1870) LR 5 QB 549 (‘Banks’) and ss.2-3 MCA 2005 (see paras [6]-[10]). 

(2) A polarised view had developed between Chancery and Court of Protection lawyers as to regards the interaction between Banks and the MCA 2005.  Pending the Law Commission’s work on wills, the court tentatively proposed a ‘compromise’ solution, based upon five points: (1) ss.2-3 MCA 2005 did not strictly apply to testamentary capacity in Probate cases; (2) ss.2-3 and general common law on capacity were aligned (and consciously so); (3) ss.2-3 were broadly consistent with the common law on testamentary capacity; (4) ss.2-3 and the Banks criteria were consistent and could 'accommodate' each other; (5) ss.2-3 were 'appropriate', in a similar sense as in A Local Authority v MM [2007] EWHC 2003 (Fam) to be included by analogy within the common law approach to testamentary capacity in Probate cases (see paras [20]-[22]; [23]-[50]).

(3) Applying the compromise position to the facts of the instant case as a ‘worked example,’ on the evidence before the court, looking at the wills from 2010 onwards individually; and standing back and considering them together in the light of all the evidence, including his medical notes and the diagnosis of dementia, the testator had testamentary capacity throughout the relevant period.  The execution of the 2020 will in the context of the COVID pandemic – involving witnessing of the testator’s will through a car window - was an ingenious arrangement amounting to valid execution; it was therefore valid, superseded all previous wills and was admitted to Probate.  The son had 28 days from service of the judgment to object, otherwise he would be bound by it (see paras [22] and [75]). 

Statutory provisions considered

Administration of Justice Act 1985, s 49
Mental Capacity Act 2005, ss 1, 2, 3, 16, 18, Sch 2 

Cases referred to in judgment

John Aldis (instructed by Somerfield & Co) for the claimant
Martin Langston (instructed by MJC Law) for the defendant

Full judgment available on The National Archives database here.

Reported by Alex Ruck Keene KC (Hon)