Testamentary capacity: some perspectives for 2011

  • Author : Barbara Rich
  • Date : January 2011

T wo important decisions in the course of 2010 were concerned with the issue of testamentary capacity: the first-instance decision of Mr Justice Briggs in Key v Key [2010] EWHC 408 Ch and the judgment of the Court of Appeal in Perrins v Holland [2010] EWCA Civ 840 and [2010] EWCA Civ 1398 (costs). Both have already been the subject, or the starting point for recent articles in the Trust Quarterly Review (TQR): Stephen Lawson’s ‘The Golden Rule: time to move on’ in TQR 2010/3 at p.10 and Penelope Reed QC’s ‘Perrins v Holland: the rule in Parker v Felgate lives on’ in TQR 2010/4 at p.16. This begs the question of some justification for a further discussion of them. This article is in part a response to Stephen Lawson’s expressed wish to stimulate debate on the subject of the Golden Rule, and in part a wider survey of testamentary capacity issues in contentious probate claims following these two decisions – a survey which takes into account some developments in the law under the Mental Capacity Act 2005 (the Act).

Banks v Goodfellow and the Mental Capacity Act 2005

Both Key and Perrins were decisions on the well-known common law test of testamentary capacity in Banks v Goodfellow (1870) LR 5 QB 549 and did not involve consideration of the statutory test of incapacity in the Act, which came into force on 1 October 2007. A variety of judicial views have been expressed about the relationship between the common law and statute on this point. In Scammell v Farmer [2008] EWHC 1100 (Ch) the Court held that the Act did not apply as: (1) it had not been in force at the date of the will and (2) the execution of the will was not a decision ‘for the purposes of this Act’ but that s3 was in any event a ‘modern restatement’ of the Banks v Goodfellow test. In Perrins v Holland at first instance [2009] EWHC 1945 (Ch) the Act was described by Lewison J as having superseded the Banks v Goodfellow test in cases arising after it came into force, the Court of Appeal simply observing that ‘the requirement for testamentary capacity is not statutory’.

Now that the Act has been in force for over three years it is inevitable that it will not be long before a contentious probate case involving a will made after 1 October 2007 will come before the courts, and the issue will then be solely whether or not the posthumous review of capacity falls within ‘the purposes of this Act’. It is clear from the general scheme of the Act that its primary purpose is to create a framework for decision-making on behalf of adults who lack capacity, the principles and powers of the Act operating before and not after the relevant decision is taken. Section 62 is headed ‘Scope of the Act’ but provides only that ‘For the avoidance of doubt, it is hereby declared that nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 (c. 60) (assisting suicide).’ and there are a number of other specifically-excluded personal decisions in ss27-29 of the Act. As noted by the judge, Stephen Smith QC, in Scammell v Farmer, the Code of Practice which accompanies the Act states at paragraph 4.33:

‘The Act’s new definition of capacity is in line with the existing common law tests, and the law does not replace them. When cases come before the court on [capacity to make a will] judges can adopt the new definition if they think it is appropriate.’

Interestingly, in Sharp v Adam [2006] EWCA Civ 449, an appeal determined about a year after the Act received royal assent, the Court of Appeal described Banks v Goodfellow as: ‘having withstood the test of time’ and also noted that:

‘[the appellant’s counsel] kindly drafted at our request what he suggested should be a modern version of the Banks v Goodfellow formulation for testamentary capacity. We do not reproduce the draft, because we do not consider on reflection that the Banks v Goodfellow formulation needs to be reformulated, nor is it perhaps open to this Court to do so…‘.

As a matter of practical reality, however, I think it is increasingly likely that judges will find it appropriate to adopt the new definition, and that Lewison J was right to describe it as having superseded Banks v Goodfellow. Increasing familiarity with the provisions and working of the Act is likely to mean that the four elements comprised in s3 definition of inability to make decisions:

‘A person is unable to make a decision for himself if he is unable:

ato understand the information relevant to the decision (which includes information about the reasonably foreseeable consequences of deciding one way or another or failing to make the decision), with the assistance of an appropriate explanation of itbto retain that information, even if only for a short periodcto use or weigh that information as part of the process of making the decision, anddto communicate the decision.’

will form the template for undertaking and recording assessments of capacity, particularly in the case of clinical assessment, whether contemporaneous or retrospective.

As to whether or not s3 of the Act is simply a ‘modern restatement’ of Banks v Goodfellow it is clear that s3 expresses in modern language and without specific reference to any particular type of decision or its subject-matter, the essence of what is expressed in Banks v Goodfellow in testation-specific language and the judicial prose of its time. There is an argument that s3(4) of the Act, which extends the definition of ‘information relevant to a decision’ to ‘information about the reasonably foreseeable consequences of – (a) deciding one way or another, or (b) failing to make the decision, goes further than anything about “being able to comprehend and appreciate the claims to which he ought to give effect”‘ in Banks v Goodfellow. It is certainly true that the language of the Act in this respect goes beyond mere paraphrase of language or even of concept in the common law, but it is hard to imagine a case which would actually turn on the difference between the two. In Key v Key Briggs J acknowledged that it was common ground that the Banks v Goodfellow test had not been displaced by the Mental Capacity Act, at least in relation to that case, where the will was made in 2006 (see paragraph 94 of the judgment) but also that:

‘Without in any way detracting from the continuing authority of Banks v Goodfellow, it must be recognised that psychiatric medicine has come a long way since 1870 in recognising an ever widening range of circumstances now regarded as sufficient at least to give rise to a risk of mental disorder, sufficient to deprive a patient of the power of rational decision making, quite distinctly from old age and infirmity.’ (paragraph 95).

He concluded (in paragraph 115) that:

‘This is not one of those cases in which it is possible to point simply to a conspicuous inability of the deceased to satisfy one of the distinct limbs of the Banks v Goodfellow test. Rather it is a case in which I have been persuaded, taking the evidence as a whole, that Mr Key was simply unable during the week following his wife’s death to exercise the decision-making powers required of a testator. In any event, the defendants have not discharged the burden of proving that he was. To the extent that such a conclusion involves a slight development of the Banks v Goodfellow test, taking into account decision-making powers rather than just comprehension, I consider that it is necessitated by the greater understanding of the mind now available from modern psychiatric medicine, in particular in relation to affective disorder.’

How far is this ‘slight development’ of the Banks v Goodfellow test reflected in the Act? Section 2(1) of the Act provides that:

‘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 disturbance in the functioning of, the mind or brain.’

and s3, as noted above, sets out the four elements of inability to make decisions. Briggs J explicitly found that Mr Key was ‘unable . . . to exercise decision-making powers’ which is the language of s2 (and identified the clinical source of that inability), and the distinction he drew between ‘decision-making powers’ and ‘just comprehension’ is reflected in s3, where an ability to ‘understand’ is only one of the four requisite elements in decision-making. I think, therefore, that there is nothing in the judgment in Key which detracts from the ‘modern restatement’ view of the Act.

Perrins v Holland and the Mental Capacity Act 2005

Penelope Reed QC’s article on Perrins v Holland in TQR 2010/4 describes the case in detail and offers a sustained critique of the outcome. As noted above, the judgments of the Court of Appeal deal only with the common law. As has been repeatedly stated, both by SJ Lush in cases dealing with disputed capacity in the Court of Protection, and by Henderson J sitting as a judge of the Court of Protection in Re S: D v R (Deputy of S) and S [2010] EWHC 2405 (COP) the assessment of capacity for the purposes of the Act is both issue-specific and time-specific – s2(1) makes it clear that the test of inability to make decisions applies ‘at the material time’. As Moore-Bick LJ observed in Perrins v Holland the test of capacity in Banks v Goodfellow was a test which applied at the time when the testator executes his will. The appellant’s argument that it was wrong in principle for the rule in Parker v Felgate to impute to a testator a capacity that he no longer had at the time of execution of the will is consistent with the time-specific approach of the Act. However, if the decision-making involved in the execution of a will is analysed using the language adopted by Moore-Bick LJ it becomes easier to discern some consistency with the time-specific approach of the Act. In paragraphs 55-56 of the judgment he said:

‘Unless there is reason to question it, proof of testamentary capacity and the execution of the will are sufficient to establish knowledge and approval of its contents. It can normally be accepted that a person of sound mind is capable of disposing of his property and intends to do so in the manner provided for by the will. In such cases it is irrelevant to enquire whether he lacked capacity at the time when he gave the instructions, whether they continued to reflect his intentions or whether he realised that the document gave effect to them. It is enough that he was capable of making the decision at the time he executed the document. Where the testator loses some of his faculties between giving instructions and executing the will, however, the position is different. One must then ask (i) whether at the time he gave the instructions he had the ability to understand and give proper consideration to the various matters which are called for, that is, whether he had testamentary capacity, (ii) whether the document gives effect to his instructions, (iii) whether those instructions continued to reflect his intentions and (iv) whether at the time he executed the will he knew what he was doing and thus had sufficient mental capacity to carry out the juristic act which that involves. If all those questions can be answered in the affirmative, one can be satisfied that the will accurately reflects the deceased’s intentions formed at a time when he was capable of making fully informed decisions.
‘That, it seems to me, is what Parker v Felgate decides. In the first example given by Sir James Hannen the testator can remember giving certain instructions to his solicitor, believes that they have been carried out and executes the will in that belief. In such a case there is testamentary capacity at the date of decision and an intention to give effect to those decisions at the date of execution. In the second example the testator cannot remember the details of the instructions he gave, but has capacity to understand each clause of the will as it is summarised to him and to indicate his assent to it. Again, there is testamentary capacity at the date of decision and an intention to give effect to them at the date of execution. In the third example the testator can remember only that he gave instructions for his will, believes that the document correctly reflects them (as it does), and decides to execute it on that understanding. In that case also there is testamentary capacity at the date of decision and an intention to give effect to those earlier decisions at the date of execution.’

This analysis, if translated into the framework of the Act, requires an assessment which confirms the existence of full testamentary capacity at the ‘date of the decision’, i.e. when instructions are given, and an assessment which confirms the existence of sufficient capacity ‘to give effect to those decisions’ at the date of execution. If this is right, then I would respectfully disagree with the suggestion in Penelope Reed QC’s article that the judgment in Perrins v Holland in fact endorses a departure in the case of wills from the requirement for a time-specific assessment of capacity. However, having regard to the s3 definition of inability to take decisions, there is clearly an argument that sufficient capacity ‘to give effect to those decisions’ requires something close to full testamentary capacity, and that the ‘information relevant to the decision’ at the date of execution is not limited just to an understanding that the testator is executing a will for which he has previously given instructions.

The significance of the ‘Golden Rule’

As discussed in Stephen Lawson’s article in TQR 2010/3, the judgment in Key v Key strongly criticised the will draftsman’s failure to comply with the ‘Golden Rule’ (that when a solicitor is instructed to prepare a will for an aged testator, or for one who has been seriously ill, he should arrange for a medical practitioner first to satisfy himself as to the capacity and understanding of the testator, and to make a contemporaneous record of his examination and findings):

‘[his] failure to comply with what has come to be well known in the profession as the Golden Rule has greatly increased the difficulties to which this dispute has given rise and aggravated the depths of mistrust into which his client’s children have subsequently fallen’, although Briggs J also emphasised that:

‘Compliance with the Golden Rule does not, of course, operate as a touchstone of the validity of a will, nor does non-compliance demonstrate its invalidity. Its purpose, as has repeatedly been emphasised, is to assist in the avoidance of disputes, or at least in the minimisation of their scope.’

In other words, the court will not regard compliance with the rule as amounting to certifying capacity, even if this is what the medical practitioner is asked in terms to do and conscientiously undertakes to do. This point was explicitly made by the Court of Appeal in Sharp v Adam (at paragraph 27):

‘[the solicitor] took instructions for and saw to Mr Adam’s execution of the 2001 will in a quite exemplary fashion. [She] not only fully complied with [the Golden Rule] but did everything conceivably possible, short of submitting Mr Adam to a wholly impracticable full-scale series of neuro-physiological tests and examinations, to satisfy herself that Mr Adam had testamentary capacity. [The appellants’ counsel] came quite close to submitting that such meticulous compliance with the Golden Rule should in principle be determinative. In our view, this would go too far. The opinion of a general practitioner, unimpeachable in itself and supported by that of one or more solicitors, may nevertheless very occasionally be shown by other evidence to be wrong. The Golden Rule is a rule of solicitors’ good practice, not a rule of law giving conclusive status to evidence obtained in compliance with the rule. Nevertheless, where a testator’s apparent mental state is observed and recorded at the time when he actually executes the will in complete compliance with the Rule and with the care with which it was in the present case; and where professional people concerned reached a properly informed and recorded conclusion that the testator does have testamentary capacity, it will require very persuasive evidence to enable the court to dislodge that conclusion.’

It follows from this that evidence obtained in intended compliance with the rule will vary greatly in its persuasive weight. As the judges in the Court of Appeal in Sharp v Adam themselves acknowledged, the issue of capacity can be ‘finely balanced’ even where ‘exemplary’ evidence has been obtained at the time of execution of the will. The difficulty of such decisions is also acutely illustrated by the recent decision of Henderson J in Re S: D v R (Deputy of S) and S [2010] EWHC 2405 (COP). That case involved determining whether Mr S had capacity to continue to litigate an undue influence claim which had been commenced in his name by his property and affairs deputy. The Court gave detailed consideration to the written and oral evidence of three experts (among whom were psychiatrists and clinical psychologists) together with a number of further medical reports, which formed part of the relevant background.

Stephen Lawson’s article in TQR 2010/3 makes a number of forceful points about the practical constraints on obtaining material which is likely to have real evidential value, and the evidential weakness of material which is in apparent but perfunctory compliance with the Golden Rule. In particular, an assessment in the course of a short routine attendance by a general practitioner, or the results of a mini-mental state examination – a test which was never designed to be anything more than a basic screening test for dementia patients – may be of limited value. A draftsman who understands the Banks v Goodfellow/Mental Capacity Act test and conscientiously considers the relevant elements and records the questions posed and answers given may well provide more persuasive material for retrospective analysis.

It is worth comparing the approach of the Court of Protection to evidence of capacity in relation to disputed applications to register Lasting Power(s) of Attorney (LPAs). The creation of such a power requires a ‘certificate provider’ to state that the donor understands the purpose of the power and the scope of authority conferred by it. In effect this is certification of capacity, although it is not determinative if capacity is challenged. There is no requirement for the certificate-provider to be medically qualified. An eligible certificate provider can either be a person who has known the donor personally for at least two years or a person who on account of his professional skills and expertise, reasonably considers that he is competent to make the judgements necessary to provide the certificate (reg 8(1) of the LPA), Enduring Power of Attorney (EPA) and the Public Guardian (Fees, etc.) (PG) Regulations 2007). The Regulations provide a non-exhaustive list of persons who are effectively deemed to be competent to provide a certificate. This list includes, but is not limited to, registered health care professionals, and the definition of registered health care professionals is not limited to doctors but extends to registered pharmacists, dentists, opticians, osteopaths and chiropractors. The notes to the LPA form describe a certificate provider as:

‘an independent person who is able to confirm that you understand the significance of your LPA. They must have known you well for at least 2 years or have relevant professional skills to enable them to confirm that you understand the significance of your LPA (for example, your GP or solicitor)’.

The notes to certificate providers themselves in Part B of the form state:

‘Before signing this certificate you must establish that the donor understands what it is, the authority they are giving their attorneys, and is not being pressurised into making it. If someone challenges this lasting power of attorney, you may need to explain how you formed your opinion.’

However, the only guidance offered to certificate providers as to how they are to establish the donor’s understanding is a list of ‘suggested topics to discuss’ in the accompanying guidance leaflet.

Some recent judgments of the Court of Protection in cases where the validity of an LPA has been challenged for incapacity have compared the relative weight of the certificate providers’ evidence and that of medical practitioners performing the same role as expert witnesses in testamentary capacity contentious probate cases. In Re RC (unreported) 5 August 2010 (available on the Office of the Public Guardian (OPG) website, CoP No 11639140) SJ Lush expressed reservations about the manner in which the LPA had been declared to be invalid by the judge whose decision was being appealed. That judge had relied on the retrospective analysis of an eminent medical expert on capacity, and had not heard direct evidence from the certificate provider himself, who was a dentist. The judge ‘gave no weight to the fact that [the dentist] signed the LPA’. However, as SJ Lush observed ‘he was not the average High Street dental practitioner’. He had a masters’ degree in special needs dentistry and practical experience of caring for geriatric patients, and had stated this on Part B of the LPA. SJ Lush said that his evidence on capacity should have been obtained, as it was likely to be the best evidence and almost certainly the only evidence that was both time-specific and issue-specific in relation to the creation of the LPA. Similarly, in another (unpublished) judgment (CoP No 11663606) SJ Lush himself weighed up the evidence of certificate providers and experts in the same way, ultimately preferring that of the certificate providers (in support of capacity) to that of the expert (negating capacity), describing the certificate providers’ evidence as:

‘the best evidence that the circumstances will allow. It is the only evidence we have that is both issue-specific and time-specific, so far as it addresses Mrs B’s specific ability to create an LPA, at a specific time. I was impressed with both Miss S’s and Mr B’s evidence. They did precisely what had been asked of them in the directions order. They explained the questions they asked Mrs B in order to assess her capacity to create a lasting power of attorney. They described the measures they took to ascertain that she had understood all the relevant information, and had been able to retain all the relevant information. They also described how they were satisfied that she was able to use or weigh that information as part of the process of making the decision to create the lasting power of attorney, and how she communicated her decision to them.

Miss S concluded her witness statement by saying:

“I was a deputy matron in the R.A.F. and found Mrs B fully capable of understanding all my questions and replying logically, she fully understood the situation. Mrs B has short-term memory loss, hence the reason for a P.O.A. I have known Mrs B for twelve years and sadly have seen a deterioration in her mental powers. However, she is capable of making her own decisions, especially those concerning money matters.”

Mr B concluded his statement in the following manner:

“I have known Mrs B for many years as a friend and although she has this memory loss she understood everything I said to her and made her own decision about who she wanted to be her attorney.”
This opinion is not woolly or equivocal. Both certificate providers were satisfied that Mrs B understood the nature and effect of the LPA when she signed it. Dr S’s opinion has the major disadvantage of being retrospective, and does not explain why he believed that Mrs B was incapable of granting an LPA.
I accept that it may seem unusual for the court to prefer the evidence of lay witnesses to that of an experienced medical practitioner on what prima facie seems to be a clinical decision. However, this is not without precedent. In Birkin v Wing (1890) 63 LT 80, for example, the judge preferred the evidence of a solicitor, who considered that his client was mentally capable of entering into a particular contract, to that of a doctor who said that he lacked capacity. In Miss S’s case it is almost inappropriate to describe her as a lay witness, because she was a high-ranking nurse, and clearly a person who is entirely familiar with the professional and ethical standards and safeguards that one needs to take into account when assessing whether an elderly person is capable of entering into a transaction of this kind.’

SJ Lush expressed some of the same views in identical words and came to the same conclusion in his decision on the validity of an LPA in Re Collis (unreported but published on the OPG website) in October 2010. In that case the certificate provider was a solicitor of ten years’ admission and was ‘familiar with the professional and ethical standards and safeguards that one needs to take into account when assessing whether an elderly person is capable of entering into a transaction of this kind’.

Where does this leave the Golden Rule? I think it would be desirable to reformulate it in terms that referred to ‘a testator who gives an initial impression of doubtful capacity’ rather than an ‘aged’ testator or ‘one who has been seriously ill’ and to stipulate that an evidentially useful assessment of capacity in such a case need not be undertaken by a medical practitioner. The statutory test in s2 of the Act, which has a clinical diagnostic element that is not explicit in the common law test, can be satisfied even where the evidence does not establish the precise nature of the impairment or disturbance of the mind or brain: see Re S at para [41]). However, careful and persuasive evidence that is both issue-specific and time-specific, i.e. which shows that proper consideration has been given to the assessment of capacity at the time of giving instructions, should be accorded the importance in contentious probate cases that it had in the Court of Protection cases noted above.

Capacity and want of knowledge and approval

In both Key v Key and Perrins v Holland the validity of the will in question was challenged on the ground of want of knowledge and approval in addition to testamentary capacity. Making a will is the only dispositive act in English law which has, in addition to a validating requirement of capacity, a validating requirement of knowledge and approval, a concept explained in modern terms in Fuller v Strum [2002] 1 WLR 1097. In Key Briggs J expressed the relationship between the two validating requirements in negative terms (at paragraph 116): ‘a conclusion that a testator lacks testamentary capacity necessarily compels the conclusion that [the testator] did not know and approve the contents of his will’. However, an expression of the relationship in positive terms: that testamentary capacity is necessary for there to be knowledge and approval of the will’s contents, was rejected by the Court of Appeal in Perrins v Holland (at paragraph 64):

‘The use of the expression “knowledge and approval” is liable to give the impression that the court is concerned with whether at the time he executed the will the testator must be able to reconsider all the dispositions he has made. That would require testamentary capacity, but that is not what is meant by the convenient expression “knowledge and approval”. Modern authorities recognise that a clear distinction is to be drawn between testamentary capacity and knowledge and approval. As the judge observed in this case (judgment paragraph 49), testamentary capacity includes the ability to make choices, whereas knowledge and approval requires no more than the ability to understand and approve choices that have already been made.’

To that extent, Briggs J’s formulation must be regarded as qualified in cases where the rule in Parker v Felgate applies. The concept of knowledge and approval as described here is not entirely harmonious with the analysis of the relevant decision-making capacity under the Act in such a case. Assessment of whether a testator has the ability to understand and approve choices that have already been made does not really accord with the Act’s requirement for assessment of inability to make a decision at the material time, or the statutory definition of inability to make a decision. A decision ‘to approve choices that have already been made’ is still a decision for the purposes of the Act and the information relevant to the decision includes information about the reasonably foreseeable consequences of deciding one way or another or failing to make the decision. Translated into these terms, it is much harder to envisage a testator having capacity to understand the consequences of deciding whether or not to approve the will for which he has given instructions yet lacking capacity to review the ‘choices that have already been made’. It is at this point that I think that the proposition that the Mental Capacity Act test of capacity is no more than a modern restatement of the existing common law gives rise to the most acute questions, the answers to which await consideration in future cases.

Barbara Rich TEP is a barrister practising at 5 Stone Buildings, Lincoln’s Inn, London


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