Scammell v Farmer
7th June 2008
[2008] EWHC 1100 (Ch); [2008] All ER (D) 296 (May); Chancery Division; Stephen Smith QC, sitting as a High Court judge; Click for the Baiili report
The judge declined to apply the definition of mental capacity contained in the Mental Capacity Act 2005 to the circumstances of the execution of a will in 2003. He said:
- There was a large measure of agreement between counsel 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 (1870) 5 QB 549, to which I shall turn below. There is, however, an obvious difference between the position at common law and the position under the 2005 Act, in that the onus of proof of incapacity under the 2005 Act (Section 1(2)) is from the outset, and remains, on the complainant. At common law, the position is different.
- I do not consider that the 2005 Act applies in this case, for either (or both) of two reasons. First, this is not a case within the purposes of the 2005 Act, as required by section 1(1). I was referred by Mr. Pugh to Sections 16-18 of the 2005 Act, but those provisions concern the power of the Court to make or authorise the making of Wills on behalf of persons who lack capacity, not the ascertainment of whether a particular testatator had capacity when a Will was made.
- I was also referred to the Code of Practice under the Mental Capacity Act issued by the Lord Chancellor on 23rd April 2007, and it was suggested that parts of that Code of Practice suggest that the Act was intended to apply in a case such as this. Even if that was a correct reading of the Code of Practice, it would not change my interpretation of the 2005 Act. But I do not think that it is a correct reading of the Code of Practice at all, see especially paragraphs 4.31 to 4.33. The latter paragraph actually states that when cases concerning, eg, a testator’s capacity to make a will come before the court, “judges can adopt the new definition if they think it is appropriate”.
- I certainly do not think it would be appropriate for me to adopt any provision in the 2005 Act in this case. This case concerns a death in July 2003 where the Claim Form was issued on 18th February 2004. It should have been concluded long before now, and certainly before the relevant provisions of the 2005 Act were brought generally into force (1st October 2007).
- This brings me to the additional or alternative reason for my decision. To apply the 2005 Act to the disposition of the estate in this case would be to give it retrospective effect. There are presumptions against the retrospective operation of statutes and against the interference by statutes with vested interests. In Wilson v. First County Trust Ltd [2003] 4 All ER 97, at para. 19, Lord Nicholls approved the following description of the underlying rationale of these presumptions given by Staughton LJ in Secretary of State for Social Security v. Tunnicliffe [1991] 2 All ER 712 at p. 724:
“… the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears. It is not simply a question of classifying an enactment as retrospective or not retrospective. Rather it may well be a matter of degree – the greater the unfairness, the more it is to be expected that Parliament will make it clear if that is intended.”See too Lord Hope at para. 98, Lord Scott at para. 161 and Lord Rodger at paras. 186-202, especially at para. 198 concerning the “further presumption, that legislation does not apply to actions which are pending at the time when it comes into force”.
- In this case, to the extent that any relevant changes brought about by the 2005 Act improve the position of one of the parties, they would do so contrary to the presumption against retrospectivity, the presumption against the interference with vested interests, and the presumption against application to actions which are pending. It would also in my judgment be unfair, particularly if and to the extent that delays in getting this case on for trial have been caused by the Court, or the dilatoriness of the party who may be better placed under the Act.
I shall therefore decide this case without recourse to the Mental Capacity Act 2005 and the Code of Practice promulgated under it.
