Walker v Badmin
The test of testamentary capacity remains the common law test in Banks v Goodfellow, and has not been replaced by the test of capacity in the Mental Capacity Act 2005.
Facts
Mr Walker made a will shortly before his death from cancer, leaving his estate to his partner, Ms Badmin. The will was challenged on the ground that he lacked testamentary capacity because of the effects of his illness and medication. The question arose whether the court should apply the test in Banks v Goodfellow or the test of capacity in the Mental Capacity Act 2005.
Legal principle
Nicholas Strauss QC, sitting as a deputy High Court judge, held that the test in Banks v Goodfellow continued to apply to the question whether a person had capacity to make a will, in proceedings after the testator's death, and that the Mental Capacity Act 2005 had not changed the common law in this respect. The Act applied to decisions made under it, such as statutory wills made by the Court of Protection, but not to the retrospective assessment of testamentary capacity. On the facts, Mr Walker had testamentary capacity. The approach has since been followed in later cases.
Related cases on testamentary capacity, knowledge and approval
- Banks v Goodfellow (1870) LR 5 QB 549
- Barry v Butlin (1838) 2 Moo PC 480
- Gill v Woodall [2010] EWCA Civ 1430, [2011] Ch 380
- In the Estate of Fuld (No 3) [1968] P 675
- Key v Key [2010] EWHC 408 (Ch), [2010] 1 WLR 2020
- Parker v Felgate (1883) 8 PD 171
- Simon v Byford [2014] EWCA Civ 280
- Wintle v Nye [1959] 1 WLR 284
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