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Reforming the Law of Wills

On 13 July, the Law Commission published their consultation paper on reforming the law relating to Making a Will. The consultation paper can be downloaded from the Law Commission website, and the consultation period is open until 10 November 2017. There are many aspects of the consultation that are quite technical (e.g., around the formalities, how wills are made, how they are signed, technicalities of ademption and revocation), but there are also a great number of issues in the consultation that will be of interest to readers of this blog.

In this post, I explore the approach that the law commission have taken to capacity in the consultation document, some of their proposed reforms, and what these might mean for people with intellectual disabilities.

Testamentary Capacity in the Law Commission Wills Consultation

Capacity is defined in the consultation paper as being concerned with “a person’s cognitive ability to perfom an act or make a decision” (p. 18), which is subject to a functional test relating to “the degree of understanding sufficient for the act or decision in question” (p. 18). It is therefore concerned with mental capacity, not legal capacity. The consultation notes that capacity (understood in these terms) fluctuates, and suggests that “the crucial question is always whether the person had capacity at the time the decision was made or the act carried out.”

Most decisions made by person with impaired or fluctuating capacity fall under the Mental Capacity Act 2005 (MCA), and the functional test set out there in section 4. As I set out in a previous post, it is important to be clear about the differences between mental capacity and legal capacity. Mental capacity is concerned with decision-making ability, whereas legal capacity is a fundamental right that should be enjoyed by all.

Before the MCA came into force in England and Wales, a number of different common law tests of capacity were used. Some of the common law tests survived the introduction of the MCA. Capacity to make a will is known as ‘testamentary capacity’, which is one of these common law tests. This test was originally set out in Banks v Goodfellow (1870), and (simply put) requires the testator to understand that s/he is making a will, what the immediate effects of his/her testamentary disposition will be, and the claims of those who might expect to benefit from the will. There has been some debate between lawyers about the scope of the fourth ‘limb’ to the test in Banks, around the effect of delusions. The prevailing view is that this common law test for testamentary capacity survived the enactment of the Mental Capacity Act 2005, though there is some uncertainty about this question, as well as about the precise scope of the common law test in Banks.

If a person lacks testamentary capacity at the time a will was made, then the will is legally invalid. Getting the test for capacity right in the context of wills, as the Law Commission point out, is important as a means of protecting autonomy and testamentary freedom, both important legal concepts. If the bar for testamentary capacity is set too high, this might deny people who do have the ability to make their own decisions about what they would like to happen to their property after they die the legal means to do so. If the bar is set too low, however, vulnerable people, especially people with intellectual disabilities, might be left open to abuse or exploitation.

Testamentary capacity is, therefore, an important element of the current consultation on making a will. If a person who needs a will lacks the capacity to make one, an application can be made to the Court of Protection for a ‘Statutory Will’ which has the same effects as an ordinary will (see further, Harding, 2015). Statutory wills are often much more expensive than an ‘ordinary’ will, such that they are often not appropriate for people with lower levels of assets. If a person does not make a will their assets are distributed according to the laws on intestacy.

What the Law Commission Propose about Testamentary Capacity

The Law Commission have made many proposals for reform in the consultation document. Given the uncertainty that currently exists about which test (Banks v Goodfellow or the MCA) currently applies to testamentary capacity, it is unsurprising that the Law Commission propose reform in this area.

They have provisionally proposed that testamentary capacity use the MCA test, with extra information about what the testator must understand to be outlined in the MCA Code of Practice. In the alternative, they suggest that the Banks v Goodfellow test should be placed on a statutory footing, and also clarified. In either case, the Law Commission would like a statutory presumption of capacity (like the one contained in section 1 of the MCA) to apply to testamentary decision-making. This would ensure that no disability or impairment is, in and of itself, determinative of a lack of capacity to make a will.

The Law Commission also discuss the possibility of introducing a supported will-making scheme to ensure that people with impaired capacity can get the support they need to make a will. The consultation seeks views about the practicality, desirability and technicalities of introducing a scheme of this nature. This supported will-making scheme would offer a bridge between those who have full capacity to make a will and those who completely lack the mental capacity to do so, creating an alternative to expensive statutory wills.

How would this affect people with intellectual disabilities?

The two different tests of capacity (Banks v Goodfellow and the MCA) have only minor differences between them, but a minor difference in law can create large effects on the everyday experience of individuals. The main differences identified in the case law are effects of a presumption of capacity regarding where the burden of proof sits at law; the kind of information that the testator would be required to understand when making a will; and whether the testator must understand the ‘reasonably foreseeable’ consequences of their decision, or only the immediate consequences of their will.

Capacity is a difficult concept in both law and practice. The fluctuating nature of capacity, the fact that a person can be able to make a decision at one time and not at another, or in some interpersonal contexts but not others, make assessing capacity a peculiarly difficult thing to do. In the context of wills, especially, capacity is troublesome because often testamentary capacity is called into question after the death of the testator, long after the will has been made, and when capacity assessments can no longer be carried out.

In the course of the Everyday Decisions research project, we have found that many people who support people with intellectual disabilities are reluctant to say whether they think a person has capacity to make big decisions in their lives. Similiarly, the Law Commission consultation reports anecdotal evidence that “doctors are often uncomfortable or unwilling to confirm a testator’s capacity” (p. 44). This suggests that, however desirable it may be, clear and robust assessment of decision-making capacity is far from straightforward.

Making the test for testamentary capacity clearer in law might make it easier for people with disabilities to make a will, especially if the result is that more people are presumed to have capacity. Clarifying the type and depth of information a testator must understand in order to make a will could potentially make it easier for people assessing testamentary capacity to do so. Clarification of the law in this area will likely make things easier for courts, lawyers and parties involved in challenges to wills that rest on questions of testamentary capacity.

Introducing a supported will-making scheme, on the other hand, would undoubtedly make it easier for people with intellectual disabilities to make a will. Appropriate safeguards that protect the testator against undue influence would be required to ensure that vulnerable testators are not taken advantage of by those offering support. Supporting people to make their own decisions is an important way in which people with disabilities can be helped to enjoy their legal capacity.

Find Out More

Birmingham Law School will be hosting a Law Commission Consultation Event on Thursday 12 October 2017. The event is free and open to all: register to attend.

Links and further reading

Law Commission Wills Project:

On the Law Commission website there is a link to an easyread version of the Making a Will consultation.

Rosie Harding (2015) ‘The Rise of Statutory Wills and the Limits of Best Interests Decision-Making’ Modern Law Review 78(6): 945-970. Contact Us to request a copy of this article.

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