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9 November 2021

A Tale of Two Capacities – Assessing the Mental Capacity Act’s Relevance in Proving Testamentary Capacity in Singapore

Tan Kah Wai

Published on e-First 9 November 2021

Abstract:
“It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness”, Charles Dickens’ timeless words is an appropriate description of the ebbs and flows of one’s testamentary capacity. In determining whether a testator has testamentary capacity, practitioners always relied on the unintuitive common law rules as stated in the locus classicus of Banks v Goodfellow (1870) LR 5 QB 549. However, the murky waters are even more unsettled with the introduction of the Mental Capacity Act (Cap 177A, 2010 Rev Ed) (“MCA”). This article considers the uneasy interaction between the old common law rules and the MCA, and proposes some changes for the law on testamentary capacity.