Since the passing of the Mental Capacity Act 2005 (MCA), there has been a single statutory regime for the purposes of making decisions under the Act (s. 1(1)). That variously (and non-exhaustively) covers the appointment of deputies, lasting powers of attorney, decisions in respect of refusing treatment, and authorising participation in medical research. It also covers litigation capacity (CPR 21.1(c)).
In the following article, Trinity Business and Property barrister, Thomas Langley explores the difference between Common Law and statutory approaches to mental capacity.
The MCA Approach
The approach set out under MCA s. 1 is essentially assistive. There is a presumption of capacity. There is a strong imperative in favour of helping vulnerable people take decisions rather than taking decisions for them. Unwise decisions do not necessarily mean a lack of capacity. If decisions are taken for them they must be taken in their best interests, and the decision-taker must consider how to take them in the least restrictive way for the person concerned.
Capacity is defined at s. 2: 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. It is time- and decision-specific. It is not necessarily lacking if a person is only able to retain information for a short period of time (s. 4(3)). Rather, every effort should be made to explain the circumstances, including via simplification.
The Common Law and Multiple Tests Approaches
When the Act was passed, there was some expectation or suggestion that the remit of the MCA test might be extended to cover contractual and testamentary capacity. That expectation has not been fulfilled. Rather, the multiple tests position currently prevails: that the MCA test is for the purposes (and, implicitly, only for the purposes) of the Act, even if there may be close similarities between the MCA test and the Common Law tests.
Following Kicks v Leigh [2014] EWHC 3926 (Ch) at [62], the MCA does not apply to the law of contracts, in the context of a disputed gift. In that case Morris QC considered that there were essentially two main differences between the MCA test and the contractual capacity test: the differing burden of proof, and the wider subcategories of capacity identified in the MCA [65]. He also observed that, if the two tests did align, then it might be said that there was no need for the MCA at all, unless ss. 2-3 were looked at as merely being a more detailed exposition of the common law principles [65]-[66]. He reasoned at [64]-[66] in the following way:
- The MCA was clear it was a test for the purposes of this Act.
- Related to that, MCA was devised for prospective decision making for living persons and was drafted with reference to the role of the Court of Protection.
- The common law test for capacity in Re Beaney [1978] 1 WLR 770 at (774) placed a different incidence of the burden of proof, where under the MCA the presumption is one of capacity.
- The MCA seems to expand on the common law approach by identifying a number of subcategories of capacity and expressly deals with short term retention.
- Applying the MCA would not have made any material difference in this case, and it would have be applied alongside the common law test in any event.
The contractual test is therefore likely to remain as summarised in Fehily v Atkinson [2017] Bus. L.R. 695 at [99]: The authorities, then, state that in order to have mental capacity, a person must be capable of understanding the nature of the transaction or the nature and effect of that particular transaction or the nature of the contract. What this means is that the person has the ability to absorb, retain, understand, process and weigh information about the key features and effects of the proposed transaction, and the alternatives to it, if they are explained to the person in broad terms and simple language. That is importantly qualified by question of contracts for necessary goods or services, which are referred to by s. 7 of the MCA.
In respect of testamentary capacity, the multiple tests position was adopted by the High Court in Walker v Badmin [2015] WTLR 493 (to which Morris QC referred to in Kicks v Leigh above; that position was confirmed by Clitheroe v Bond [2022] EWHC 2203 (Ch)). Strauss QC at [20]-[24] set out three clear differences between the Banks and MCA tests:
- The presumption of capacity in the MCA vs shifting burdens under Banks [21].
- The requirement at MCA 3(1) that a person be able to understand all the relevant information to making a decision, compared to the more circumscribed requirements in Banks [23].
- MCA s. 3(4), read in conjunction with s. 3(1), requires that a subject understand, use or weigh information as to the reasonably foreseeable consequences of the choices open to him, because of the impairment of his mind or brain. Again, Banks may be less exacting [24].
In Strauss QC’s analysis, those differences could be explained by the purpose of the legal regimes: the MCA is aimed at helping living persons take decisions, or taking them in their best interests.
Instead the Common Law approach set out in Banks v Goodfellow (1869-70) L.R. 5 Q.B. 549 at (565) would remain, which broadly breaks down the requirements for testamentary capacity as follows:
(i) the nature of the act of making a will and its effect,
(ii) the extent of the property to be disposed of,
(iii) the claims of any potential beneficiaries,
(iv) not to be under an insane delusion that causes him to bring about a disposal he otherwise would not have made.
Further, as set out in Vegetarian Society v Scott [2013] EWHC 4097 at [27], there is a question of shifting presumptions. It is first for the party propounding the will to show it is rational on its face. It is then for the party challenging the will to raise sufficient evidence to bring capacity into doubt. The burden then shifts back again to the party propounding the will for probate to prove testamentary capacity. That obviously differs from the MCA presumption in favour of capacity.
The Assimilation Approach
By contrast, in an interesting recent judgment HHJ Tindall in Baker & Anor v Hewston [2023] EWHC 1145 (Ch) took the view that the two tests might be assimilable. That case concerned a challenge to a 2020 will on the basis of lack of capacity. The testator made around six wills leaving his estate to various members of his two families, the last one disinheriting his second family in the context of being diagnosed with dementia, in a decision judicially characterised as frankly callous in part [64]. The facts are relatively typical; the interest lies in the way the judge (who sits in both the Court of Protection and Chancery) approached the law.
The judge started by noting the polarised debate between Chancery and Court of Protection practitioners [20.1]-[20.2]. The judge proposed five points in response:
22.1 ss.2-3 MCA do not strictly apply to testamentary capacity in Probate cases;
22.2 ss.2-3 and general common law on capacity are aligned (and consciously so);
22.3 ss.2-3 are broadly consistent with the common law on testamentary capacity;
22.4 ss.2-3 and the Banks criteria are consistent and can 'accommodate' each other;
22.5 ss.2-3 are 'appropriate', in a similar sense as in MM to be included by analogy within the common law approach to testamentary capacity in Probate cases.
Addressing Strauss QC’s points, HHJ Tindall set out:
- Capacity cases are rarely (and seldom desirably) decided on the basis of burdens of proof [34]-[35].
- The analysis begs the question of what relevant information is and in any event the MCA does not necessarily require an individual to understand all the relevant information anyway [38]-[40].
- The MCA does in fact distinguish between a subject’s ability to understand “direct” vs “collateral” consequences, and there might be little practical difference in a wills case [36]-[37].
HHJ Tindall’s proposed way forward at [41] would be to map the MCA onto Banks. In particular for the first three limbs of the Banks test [should] be treated as the 'relevant information' under s.3 MCA and for the fourth limb [to] map onto s.2 MCA
Nonetheless, HHJ Tindall makes clear at [46] that his approach does not elide the tests completely:
I do not suggest that ss.2-3 MCA applied to testamentary capacity on one hand and the common law test in Banks on the other are identical, simply that they are broadly consistent and one can 'accommodate' the other, depending on which applies. So, if a will is validly executed and 'rational on its face' there is a presumption of capacity either way (although if the will were irrational on its face, that would be the most powerful evidence to displace the presumption under s.1(2) MCA).
Finally, it is worth noting in contrast to the speculation in Baker v Hewston, Mrs Justice Joanna Smith in Re Leonard [2024] EWHC 321 (Ch) at [150] expressly adopted Banks at [150]-[157], approving earlier caselaw to the effect that the law on this point as very well settled. It may therefore be that HHJ Tindall’s assimilation approach finds little favour amongst a judiciary and practitioners who are anxious to see the law settled.
Practical Takeaways
It seems unlikely that the further issue of whether there is one test or many will be the grounds for a successful appeal, at least in the near future. It may take a very finely balanced edge case to make it worth a further appeal. However, it is a salutary reminder for litigators to check the specific legal regime that applies to their particular case, and to consider whether a cross-check against the MCA produces a different result.
Please note that this article is made available for educational and information purposes only. The views expressed in it are those of the author. The contents do not constitute legal advice and should not be relied on as such. The author and Trinity Chambers accept no responsibility for the continuing accuracy of the contents. Contact Trinity Chambers if you have a specific legal query.