INTRODUCTION
Since the Mental Capacity Act 2005 (MCA) came into force, a significant debate has arisen as to whether it has and/or should replace the test for testamentary capacity that was first established in Banks v Goodfellow. The courts have, thus far, favoured the survival of the Banks test, although the argument that the MCA should override Banks continues to be raised, prompting discussion about the extent of the differences between the two tests. Meanwhile, the Law Commission has been working on proposals to reform the law of wills, including changes to the test for testamentary capacity. This project was put on hold so that the Law Commission could review the law concerning weddings. However, with the Weddings project having reported in July 2022, and recognition that the Coronavirus pandemic has illustrated the need for reform of the law of wills, this project has now re-started …
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Daniel Bedford and Juliet Brook, ‘Reform of testamentary capacity: the hidden pitfalls of replacing Banks v Goodfellow with the Mental Capacity Act 2005’ (2024) 140 Law Quarterly Review (Jan) 34-60.
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