Update to Capacity

Update to para 2.5, page 33

New footnote 6: White v Philips [2017] EWHC 386 (Ch)

The legal test as to testamentary capacity is a common law one and the classic statement of the test, being found in Banks v Goodfellow (1870) LR5 QB 549, is almost 150 years old. Since judicial application of the test occurs in contested, adversarial proceedings, the evidential burden of proof and the manner in which it shifts are significant and were live issues in this case. All of these distinguishing factors combine to make this fascinating decision of HHJ Saffman of academic interest to those concerned with the application of sections 1, 2 and 3 of the MCA 2005 to medical treatment decisions in the Court of Protection.

That said, it is interesting to observe some of the similarities. In particular, one notes the requirement of causation and the implicit acknowledgement in 1870 that one might suffer a delusion of the mind and still retain the issue specific capacity to give instructions for and execute a will. Thus the 1870 test demands that the testator not only: i) understands the nature and effect of his act in making a will, ii) understands and recollects the extent of his property and iii) understands the nature and extent of the claims on him of those he is including and excluding but also iv) is not subject to any disorder of the mind as shall “poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.” As HHJ Saffman said in his exposition of the law, “It is a question of fact whether the delusion affects the disposition or the failure to make one and one must bear in mind that the existence of a delusion is quite compatible with the retention of the general powers and faculties of the mind.” After meticulous analysis of the lay and expert psychiatric evidence, the Judge found that whilst he did “not doubt that at times Mr. White, by virtue of the drugs with which he had been prescribed, suffered from opiate toxicity to a greater or lesser extent ” any disorder of his mind did not influence him in the distribution of his estate and that all four elements of the test were established by the defendant.