The four limbs

According to Banks, an individual must: understand the nature of the act of making a will and its effects; understand broadly the property that will be subject to the will; and comprehend and appreciate any claims that might arise should the property not be given to expectant beneficiaries. As a fourth limb, there should be no delusion affecting the mind.

The language used in Banks is nothing less than extraordinary and now seems antiquated. The two witnesses in the case were a ‘medical man’ and a ‘clergyman of the parish’ who provided evidence ‘which, if believed, was strong to establish a case of general insanity’, ‘perversion of thought’ or ‘disorder of the mind’. Our society’s understanding of mental capacity has moved forward since the Victorian era; should not our law also?

A testator’s lack of capacity is one of the most common grounds for challenging a will and, according to a recent IBB Law report,[3] 26 per cent of inheritance disputes arise because the claimant was not happy with the inheritance they received. Bearing in mind the astronomical rise in real-estate asset values, particularly when juxtaposed with the current cost-of-living crisis, it is unsurprising that a disappointed beneficiary may see the benefit in using this arguably unclear area of law to their potential advantage.

A new test

The changes suggested in the Commission’s consultation include a new mental capacity test that takes into account our modern understanding of mental capacity. Professor Nick Hopkins of the Commission has plainly identified that ‘conditions which affect decision-making – like dementia – aren’t properly accounted for in the law’.