ABSTRACT
After many delays, the Law Commission is due to publish its final report on the law governing wills in early 2025. In it, it is expected that it will propose amendments to the test for testamentary capacity, in order to bring it in line with the test for capacity under the Mental Capacity Act 2005 (MCA). This article explores the implications of such a move for cases involving mental disorder. It argues that doing so might have unforeseen consequences for the court when faced with some those cases currently decided under the common law test in the Banks v Goodfellow test, which cannot be easily accommodated within the statutory framework of the MCA. If, therefore, the courts wish to be able to continue to find testators to lack capacity in circumstances where false beliefs or affective attitudes have affected their disposition (as, it will be argued, they should), then important reforms need to be introduced to the MCA, before it can be applied in the context of testamentary capacity.
Auckland, Cressida, Reforming Testamentary Capacity: The Problem of Disorder (January 29, 2025), LSE Legal Studies Working Paper No 1/2025.
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