Reforming the laws on mental capacity

The legal test for mental capacity to make a will remains that set out in Banks v Goodfellow in 1870. At the time, the average newborn girl was not expected to see her 45th birthday. According to Mortality Insights from the Government Actuary’s Department in 2022, the life expectancy of a female born in England in 2022 was 83. Of course this is happy news, but the massive demographic shift which the UK’s population is undergoing cannot fail to have an impact on our society, services and economy. The Centre for Ageing Better notes that the experience of ageing in England is getting worse and more unequal. 

As lawyers working in the private wealth sector, we are particularly aware of the law’s failure to keep pace with this population shift. Dementia in 1870 was rare – it was not a disease associated with old age – people simply did not often live long enough to suffer from dementia as we know it today. Today it is terrifyingly prevalent.  Alzheimer’s Research UK notes that a person’s chances of developing dementia over the age of 80 are one in six.

Reform is needed. This is particularly so in the laws around mental capacity to make a will. This is partly because the current legal test is not the relatively modern one set out in the Mental Capacity Act 2005, but rather the one set out in 1870 in Banks, complete with archaic language that bears little relation to modern medical understanding of cognitive issues. Apart from anything else, the inconsistency is unhelpful – for virtually all other decisions made by an individual person the MCA 2005 test applies.

A particular area of concern is the period that we call the ‘Twilight Zone’. This refers to the period of time when a person has mental capacity in the strict legal sense, but some impairment, such as dementia, affects their cognitive abilities. This is the prodromal phase of an illness. The law may treat these individuals as if they have full mental capacity (and can therefore make decisions autonomously) whereas reality may not be quite as black and white. For example, people within the Twilight Zone may be more vulnerable to undue influence and may be exploited financially by those who do not necessarily have their best interests at heart.

In relation to will-making, people within the Twilight Zone are not helped by the fact that it is very difficult to prove undue influence, and the test is inconsistent with that relating to other transactions made during lifetime. The Law Commission made suggestions of reform to the law in this area in its consultation document released in 2017. Thus far, those suggestions have not been taken any further, although we are pleased to note that the commission has recently reinstated its will reform programme, so hopefully we will see movement soon.  

Out of the will-making sphere there are many other areas in need of reform.  Predatory marriage is an area of particular concern. A predatory marriage is where someone who is vulnerable and open to pressure and/or to giving misplaced trust and affection may be led into marriage or civil partnership by the other party for financial gain.

Many people are unaware that entering into marriage or civil partnership in England usually results in automatic revocation of all previous wills. As such, if a new will is not put in place after the marriage then the intestacy rules will apply on death. This means that all (or a significant portion of) the estate of the first party to the marriage to die will pass to the surviving spouse or civil partner, to the detriment of family or other beneficiaries. In the case of a predatory marriage or civil partnership, this may not be the intention of the vulnerable person and the sad reality is that they may never even know it has happened.

A related point is that the threshold for capacity to marry is very low – understandably so given that marriage is a key societal institution; the parties need to understand the broad concept of marriage, but do not need to understand (or know) that marriage revokes a will. On the other hand, the test for capacity to make a will is much higher, particularly for people whose assets and/or family circumstances are complex. The disparity in the tests for capacity can result in a situation where a vulnerable person gets married but does not have capacity to make a new will and therefore their testamentary wishes are entirely unprotected.

These are just a few areas where further thought is needed to ensure that proper legal safeguards are put in place to protect the vulnerable. The current lack of protection forces the onus on those advisers working with the vulnerable to recognise the signs of abuse and to collaborate with those looking after other aspects of the client’s life – their mental and physical health or their care arrangements, for example – to ensure their protection. This can be very difficult for advisers at the best of times, and especially when contact with clients is irregular or (as was the case during the pandemic) primarily via video call.

Civil jurisdictions offer forced heirship and community property regimes, and greater will-making safeguards, which can reduce the influence of those with malicious intent. However, such regimes do so at a cost to individual autonomy and accessibility of will-making. The key question is where does the balance lie between safeguarding and accessibility, and how can we reform the law to introduce more nuance into the legal landscape? 

Richard McDermott is a partner (private client) and Henrietta Mason senior counsel (contentious trust and estates) at Farrer & Co