Baker v Hewston [2023] EWHC 1145 (Ch)

Stanley, a 91-year-old with dementia, made six wills in his final decade, repeatedly changing beneficiaries. His executors sought probate of his 2020 will. The defendant objected citing capacity concerns but compromised at trial. The judgment examines the relationship between Banks v Goodfellow and the Mental Capacity Act 2005.

Facts

Stanley, born in 1929, died aged 91 in August 2020. He was married to Agnes but separated in the 1980s and lived with his partner Kathleen until her death in 2014. In 2009 Stanley was diagnosed with frontal lobe dementia secondary to Pick’s Disease and was compulsorily admitted to hospital under section 2 of the Mental Health Act 1983. Over the following decade, Stanley made six wills with shifting beneficiaries: a 2009 will favouring his three children (Ronald, Martin and Jennifer); a 2010 will (mirroring Kathleen’s) leaving half-shares in their jointly-owned bungalow to Diane (Kathleen’s daughter) and Martin; a 2014 will disinheriting Diane shortly after Kathleen’s death and favouring Agnes; a 2017 will disinheriting Martin after a family incident; a 2018 will re-inheriting Martin; and finally a 2020 will again disinheriting Martin and favouring Jennifer, Ronald, Emma and Luke.

When Kathleen died in 2014, Stanley handed Diane the deeds to the bungalow in an envelope inscribed ‘Di keep safe your half of house, Stan’. Stanley’s executors (Jennifer and Emma) sought probate of the 2020 will. Diane objected on capacity grounds. At trial, after hearing evidence from the drafting solicitor Mr Penn and attesting witnesses, Diane withdrew her objection as part of a compromise which included a payment to her and to a dementia charity.

Issues

Despite the compromise, HHJ Tindal delivered a judgment because: (i) Martin had not participated and so could not ‘consent’ under section 49 of the Administration of Justice Act 1985; (ii) it was important to explain why Stanley’s changing wills reflected caprice rather than incapacity; and (iii) the case raised an important legal issue regarding the relationship between the common law test in Banks v Goodfellow (1870) LR 5 QB 549 and sections 2-3 of the Mental Capacity Act 2005 (MCA), particularly regarding presumptions of capacity and the need for explanation.

Arguments

Mr Langston, for Diane, argued Stanley’s chopping and changing of wills, combined with his dementia diagnosis, suggested a lack of testamentary capacity and that his exclusion of Martin in the 2020 will suggested Stanley had forgotten or overlooked him, or that capacity was rapidly deteriorating. Mr Aldis, for the claimants, argued Stanley had testamentary capacity and knowledge and approval of the 2020 will.

Judgment

The Banks v Goodfellow / MCA relationship

HHJ Tindal undertook an extensive analysis of whether the common law test in Banks continues to govern testamentary capacity, or whether the MCA applies. He endorsed the modernised formulation of Banks approved in Burns v Burns, requiring the testator to understand the nature of making a will and its effects, recollect the extent of his property, understand the nature and extent of claims upon him (both those included and excluded), and that no insane delusion should influence the disposition.

The judge made five key points forming a ‘compromise solution’: (i) sections 2-3 MCA do not strictly apply to testamentary capacity in probate cases; (ii) sections 2-3 MCA and the common law on capacity are consciously aligned; (iii) sections 2-3 MCA are broadly consistent with the common law on testamentary capacity; (iv) the two frameworks can ‘accommodate’ one another, with the first three Banks limbs providing the ‘relevant information’ under section 3 MCA and the fourth limb mapping onto section 2 MCA; and (v) it is appropriate to use sections 2-3 MCA as a ‘cross-check’ to the Banks test.

The judge respectfully disagreed with Theobald’s trenchant view that the MCA Code of Practice was wrong, considering instead that the Code was correct that the Act’s definition is ‘in line with’ existing common law tests. He also suggested differences identified by Mr Strauss QC in Walker v Badmin were overstated. Regarding the presumption of capacity, he noted that where a will is duly executed and rational on its face, there is a presumption of capacity at common law (Re Key), aligning with section 1(2) MCA.

Application to Stanley’s wills

The judge found the 2009 will invalid due to its execution within two months of Stanley’s compulsory hospitalisation, the absence of contemporaneous evidence, and the unexplained omission of both Kathleen and Agnes. The 2010 will was valid: it was rational, properly explained by solicitors, and there was no causative nexus to any mental disorder. The June 2014 will was valid despite callously disinheriting Diane: detailed solicitors’ file notes evidenced Stanley’s understanding of the tax-efficient rationale. The 2017 and 2018 wills were both valid, reflecting rational (if harsh) decisions about Martin. The 2020 will was valid: Mr Penn found Stanley ‘alert and orientated’, medical records supported this, and the exclusion of Martin was deliberate rather than an oversight. The judge inferred Stanley deliberately did not mention Martin to Mr Penn to avoid being questioned as the previous solicitors had done.

While Mr Penn failed to follow the ‘Golden Rule’ by not obtaining a medical capacity assessment, this did not invalidate the will, consistent with Re Key and Burns which hold the Golden Rule is a rule of practice, not law.

Implications

This judgment offers a careful reconciliation between the common law test in Banks v Goodfellow and the statutory framework in the MCA. The judge’s proposed ‘compromise solution’ treats the first three Banks limbs as the ‘relevant information’ under section 3 MCA, with the fourth limb mapping onto section 2 MCA. This approach uses the MCA as a ‘cross-check’ to the Banks test, rather than replacing it.

The decision confirms that in probate cases, the common law test in Banks remains the governing framework, consistent with Walker v Badmin, James v James and Clitheroe. However, the judge’s analysis provides practitioners with a coherent way of harmonising the two frameworks to avoid the impracticable, illogical or inconvenient result of different courts potentially reaching different conclusions on the same testator’s capacity.

The judgment also reinforces that freedom of testation permits testators with capacity to make ‘hurtful, ungrateful or unfair’ wills. Harsh or vindictive dispositions do not of themselves evidence lack of capacity. For solicitors, the case is a reminder of the value of following the Golden Rule, while confirming that failure to do so does not automatically invalidate a will. The decision is pending the Law Commission’s anticipated update to its 2017 ‘Making a Will’ consultation, and the judge expressly presented his analysis as tentative pending that work.

Verdict: The court pronounced in favour of the validity of Stanley’s 2020 will and admitted it to probate, subject to Martin’s right to object within 28 days of service of the judgment. The court found the 2009 will invalid for lack of testamentary capacity, but found the 2010, 2014, 2017, 2018 and 2020 wills all valid. The parties’ compromise (including a payment to Diane from the estate and a payment to a dementia charity) was recorded.

Source: Baker v Hewston [2023] EWHC 1145 (Ch)