Amongst many controversial proposals, the Law Commission Report published this summer proposes that the test for whether a testator has the mental capacity to make a Will should be changed.

The current test, indeed the test since 1870, has been that as set out in the case of Banks v Goodfellow. In that case, Chief Justice Cockburn said “it is essential to the exercise of [the power to make a Will] that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural facilities – that no insane delusion shall influence his Will in disposing of his property and bring it about to a disposal of it which, if the mind had not been sound, would not have been made.” (1869 – 1870 LR5 QB549 at 565]

This test remained a rare island of certainty in the ever-changing legal landscape for over 100 years. Then, however came the Mental Capacity Act 2005. It contained what seemed like a different test for capacity. It is this statutory test that the Law Commission proposes should apply to Will writing.

The test is found at sections 1-3 of the Mental Capacity Act 2005. The relevant parts of these sections state:

“1(2) A person must be assumed to have capacity unless it is established that he lacks capacity …

2(1) For the purposes of this Act, a person lacks capacity in relation to a matter if at the material time he is unable to make a decision for himself in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain …

3(1) For the purposes of section 2, a person is unable to make a decision for himself if he is unable:

  1. To understand the information that is relevant to the decision.
  2. To retain that information.
  3. To use or weigh that information as part of the process of making a decision, or
  4. To communicate his decision (whether by talking, using sign language or any other means)”

The Law Commission’s proposal is not a new one. Following the Act coming into force in April 2007, there was much debate as to which test prevailed. The debate seemed to be settled by the courts in the case of Perrins v Holland [2009] EWHC 1954 (Ch).

That case held that the common law rules apply. The case was later approved in 2003 in the case of Bray v Pearce and in 2014 by the case of Walker v Walker (ChD 20/11/2014). In that latter case Mr. Strauss QC set out the three potential differences between the tests and rejected the argument that the Act was just a modern reinstatement of the common law. The three potential differences he identified were:

  1. The burden of proof under the Act is on the person asserting lack of capacity, while under the common law it is on the person propounding the Will (at least initially).
  2. The Act requires that the person understands all the information relevant to making a decision in order to have capacity. This goes beyond what is needed under common law, where it is possible to have capacity to execute a Will even though a person is unable to remember all the relevant information.
  3. The Act also arguably requires that the person has capacity to understand use or weigh information as to the reasonable foreseeable consequences of his choices, whereas the common law does not require such an understanding of collateral consequences.

The Law Commission’s stated objective is to make making a will a lot easier. It is on that basis that they wish to explore making Wills online and generally reducing the formalities around Wills. The Mental Capacity Act 2005 test seems more straightforward and simple. However, in overturning hundreds of years of caselaw dealing with the nuances of a very specific task, they might inadvertently trigger more disputes and more Wills being disallowed. That in turn might lead to less people making wills.

Some also question the merits of the Mental Capacity Act test itself. Although good in many ways, is not without its critics. The Mental Capacity Act in effect defines capacity in terms of a diagnostic threshold and then a functional test. The diagnostic test found at section 2(1) of the Act is in effect is a medical test. This medical model of incapacity was criticised by the Committee on the Rights of Persons with Disabilities in their report of 11 April 2014.

The Committee, whose job it is to oversee the operation of the United Nations convention on the rights of persons with disabilities 2006, which the UK ratified in 2008, said of the UK that there is “a general failure to understand that the human-rights model of disability implies a shift from the substitute decision-making paradigm to one that is based on supported decision-making. The Committee was particularly critical of the diagnostic threshold.”

After the publication of the Committee’s general comments, the Ministry of Justice commissioned the Essex Autonomy Project to consider whether the Mental Capacity Act was compliant with the convention. On 22 September 2014 the Essex Autonomy Project published its report, which said that the Mental Capacity Act was not fully compliant. It recommended that section 2(1) be amended to remove the diagnostic element.

My own view, for what it is worth, is that the Law Commission, although working under the laudable objective of encouraging people to make wills, should not abandon hundreds of years of careful legal analysis for a simplified statutory code, which itself may well be criticised or later amended. Furthermore, it is not at all certain that the Mental Capacity Act test would lead to less challenges, indeed it is most likely that it would lead to more.