Is Banks v Goodfellow history?

Fischer v Diffley [2013] EWHC 4567 (Ch)


This Chancery Division case is of some interest because it is the first one of which I am aware in which the MCA 2005 has been expressly prayed in aid in determining whether an individual had testamentary capacity.

The claimants were the representatives of the family in Germany of Louise Beck, who died on the 17 January 2011. They sought a declaration that she died intestate and that the two wills executed by her and dated 1 March 2009 (‘the first will’) and 2 May 2010 (‘the second will’) were invalid.

The deceased had substantial assets in both England and Germany and on the literal construction of the wills they purported to deal with her assets in both jurisdictions. If the wills are invalid, then the deceased’s estate in England and Wales are passed on intestacy to the family whom the claimants represent and her estate in Germany would pass according to the laws of that country.

The claimants contended that at the date of execution of each of the wills, the deceased suffered from such severe dementia brought on by Alzheimer’s disease that (a) she lacked testamentary capacity and (b) there was a want of knowledge and approval and that in those circumstances they ask the court to pronounce against both wills.  The only active defendants to the claim were the former tenants and neighbours of the deceased and by their counterclaim they ask the court to pronounce in solemn form for both wills notwithstanding the apparent discrepancy between the terms of each will.   By the wills, the defendants stood to benefit from a life interest in either the whole or part of the deceased’s estate in both jurisdictions.  If the first will was upheld, the remainder would be to the Battersea Dogs and Cats Home absolutely. If the second will was upheld, the remainder is to the family in Germany.

For my purposes, the key passages from the judgment are those relating to the law, which HHJ Dight referred to as not being in dispute (paragraph 24).

At paragraph 25, HHJ Dight held:

As far as capacity is concerned, there are many reported decisions setting out the common law, the principal case being Banks v. Goodfellow, which has recently been supplemented by statute, to which, it seems to me, that I am entitled to have regard as a starting point in connection with the question of capacity.”

HHJ Dight then set out the key provisions of the MCA 2005.   He noted that the general principles to be applied were now contained in s.1, holding (at paragraph 28) that:

28. Notwithstanding the wording of sub-section 1 [i.e. ‘[t]he following principles apply for purposes of this Act.’] it seems to me, having regard to the terms of the Act and the context in which it was enacted, that the principles go further and are applicable in situations such as the present and must be looked at alongside the classic test contained within the common law as set out in the case of Banks v. Goodfellow.”

Having set out and commented upon the provisions of ss.2-3 MCA 2005, he held at paragraph 34 that it was apparent to him from the terms of the expert evidence that he heard that “each of the experts had in mind this modern statement of the principles relating to the assessment of capacity in a court of law and have addressed their evidence so as to deal with the factors that have been identified in the provisions that I have just referred to.”

HHJ Dight recited the classic authorities on want of knowledge and approval, placing particular reliance upon the decision of the Court of Appeal in Hawes v Burgess [2013] EWCA Civ 74 and that of Newey J in Greaves v Stolkin [2013] EWHC 1140 (Ch).

On the basis of the tests set down above, and after an exhaustive review of the evidence, lay and expert, HHJ Dight held that the deceased had not had the requisite capacity to make either of the two wills, nor had the defendants discharged the burden of establishing that she knew and approved the contents of the first will (for 12 reasons) or the second will (for 16 reasons).  He therefore found against both wills and declared that the deceased died intestate.


As noted at the outset, this is, as far as I know, the first time in which a Chancery Division judge has expressly prayed in aid the MCA 2005 in determining the test to apply (retrospectively) to decide whether the deceased had had testamentary capacity.   Lewison J had, previously, made the seemingly throwaway (and undoubtedly obiter) comment in Perrins v Holland [2009] EWHC 1945 (Ch) that the common law test had been ‘superseded’ by the MCA 2005 (see paragraph 40), but this is the first case in which a Chancery Division judge expressly directed himself by reference to the MCA 2005.

It is, perhaps, unfortunate, that this took place in an effectively ‘one-sided’ case without full argument because, whilst it seems to me that the common law test can, and should, encompass the material aspects of the tests contained in ss.2-3 MCA 2005, this judgment did not grapple in terms with the fact that the MCA 2005 does not apply to judicial decisions save (a) within the CoP; or (b) by virtue of the CPR where expressly required by the CPR (see Saulle v Nouvet, [2007] EWHC 2902 (QB), in reference to Part 21 of the CPR).

I have discussed this question in more detail elsewhere, but I would note, in particular, paragraph 80 of Re MM (An Adult) [2007] EWHC 2003 (Fam) [2009] 1 FLR 443, where Munby J addressed the question of what paragraph 4.33 of the MCA Code of Practice meant where it stated that “[t]he Act’s new definition of capacity is in line with the existing common law tests, and the Act does not replace them. When cases come before the court on the above issues, judges can adopt the new definition if they think it is appropriate. The Act will apply to all other cases relating to financial, healthcare or welfare decisions.”  As Munby J held “[w]hat is being said is that judges sitting elsewhere than in the Court of Protection and deciding cases where what is in issue is, for example, capacity to make a will, capacity to make a gift, capacity to enter into a contract, capacity to litigate or capacity to enter into marriage, can adopt the new definition if it is appropriate – appropriate, that is, having regard to the existing principles of the common law.

In Scammell v Farmer [2008] EWHC 1100 (Ch), Stephen Smith QC, sitting as a Deputy High Court judge, considering a posthumous challenge to a will on the basis of (inter alia) lack of testamentary capacity, considered Re MM and held that the MCA 2005 did not apply because (1) it was not a case within the purposes of the Act “as required by section 1(1))”, and/or (2) because the relevant will had been executed substantially prior to the coming into force of the Act and “that to apply it to the disposition of the estate in this case would be to give it retrospective effect contrary to the presumptions against the retrospective operation of statutes and against the interference by statutes with vested interests.”   Stephen Smith QC’s approach has been adopted subsequently in a number of cases (albeit that it is flatly inconsistent with the subsequent comment of Lewison J in Perrins v Holland).

The second of the reasons identified by Stephen Smith QC would not have applied to the case before HHJ Dight.   Whilst it is possible to reconcile the two decisions in respect of the first reason (because HHJ Dight did not find that the MCA 2005 was directly applicable, rather that the principles were applicable in the application of the common law test), it is unfortunate that HHJ Dight did not address the earlier judgment because they do not on their face sit easily together.

It is clear that HHJ Dight considered (rightly) that the principles contained in ss.1-3 MCA 2005 go further than the test contained in Banks v Goodfellow.  In other words, it would seem that (unlike Stephen Smith QC in Scammell), he did not consider that ““the test of mental capacity under Section 3 of the 2005 Act [is] a modern restatement of the test propounded in Banks v. Goodfellow” (paragraph 24).

Unfortunately HHJ Dight did not amplify his reasoning in this regard.   I would suggest that the differences between Banks v Goodfellow and ss.2-3 MCA 2005 will include:

  1. As Barbara Rich noted in 2011: “[i]t is debatable whether s 3 of the Act is simply a ‘modern restatement’ of Banks v Goodfellow. In particular, s 3(4), which includes in ‘information relevant to a decision’, ‘information about the reasonably foreseeable consequences of – (a) deciding one way or another, or (b) failing to make the decision, arguably goes further than anything in Banks v Goodfellow.” Barbara Rich: “The Assessment of Mental Capacity for Legal Purposes” [2011] Eld LJ 39 at 41;
  2. That there no reference in Banks v Goodfellow to either the retention or the communication of information. Further, Banks v Goodfellow runs together the diagnostic and functional limbs of the statutory test in ss.2-3 MCA 2005: as emphasised in PC v City of York Council [2013] EWCA Civ 478, both aspects of the test are equally important to a clear identification of (1) whether P suffers from a material disturbance of the mind or brain and (2) whether as a result of that impairment or disturbance he or she is unable to understand, use/weigh, etc. the information relevant to the decision whether to make a will and what to include in that will.

I would hope that the opportunity will arise in another case in the near future for these issues to be canvassed: not just because there is inconsistency between the Chancery Division cases noted above, but also because Hedley J held in A, B and C v X and Z [2012] EWHC 2400 (COP) that the test for determining whether a person has testamentary capacity for purposes of the exercise of the Court of Protection’s jurisdiction is that laid down in Banks v Goodfellow.  If Banks v Goodfellow really is now to be superseded by the incorporation of ss.2-3 MCA 2005 into the common law test then both Chancery and Court of Protection practitioners need to know sooner rather later.

I am grateful to Richard Jones for very helpful comments upon an earlier version of this post.

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