February 6, 2018Testamentary capacity: Banks v Goodfellow test still applies

Making a Will

In the recent case of James v James the Court confirmed that, when deciding whether a person has the necessary mental capacity to make a Will, the criteria set out in the old case of Banks v Goodfellow (1870) must still be applied, despite the fact that newer legislation has come into force dealing with the question of capacity.

The test in Banks v Goodfellow requires that the person making the Will must:

  • understand the nature of the act [of making the Will] and its effects;
  • shall understand the extent of the property of which he is disposing;
  • shall be able to comprehend and appreciate the claims to which he ought to give effect; and,
  • no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties (per Cockburn CJ).

The level of understanding required varies according to how complex the Will is, the extent of the testator’s assets and the claims upon the testator.

More recently, the Mental Capacity Act 2005 has set out a new definition of mental capacity that applies in certain situations. In some textbooks and cases, it has been suggested that the definition in the Mental Capacity Act 2005 is simply a modern day restatement of Banks v Goodfellow and the Act could therefore be optionally applied – further, it has been suggested that ultimately, the provisions of the Act will replace the test in Banks.

However, the decision in James v James has confirmed that this approach is incorrect.

In James v James, the Court confirmed that the test in Banks v Goodfellow had not only survived the enactment of the Act, but that it is the sole test of capacity when judging whether someone had the capacity to make a Will. The Court reached the conclusion for the same reasons set out in the earlier 2014 case of Walker (Deceased).  Although there is clearly an overlap between the tests and applying either would often produce the same result, this would not always be the case. These include differences in the burden of proof, and the presumption of capacity under Section 1(2) of the Mental Capacity Act.

In Walker, the Court looked at the purpose of the Mental Capacity Act as set out in Sections 1(1) and 2(1), which was to define when a living person could make decisions for themselves and to state how decisions should be made if they were unable. This is an entirely different task to evaluating retrospectively whether a deceased person had mental capacity when they made their Will. Consequently such an evaluation does not fall within the scope of the Mental Capacity Act.

Further, test in Banks v Goodfellow was founded on principles that go back over almost three centuries. Accordingly, applying the principles of statutory interpretation, it is assume that Parliament did not intend to overrule the well-established rules of the common law when passing the Mental Capacity Act, in the absence of clear words or at least necessary implication.

In the James v James case, the Deceased satisfied the first two limbs of the Banks v Goodfellow rule – he appreciated he was making a will, and he was aware of the estate that he had to dispose of. Further, at the time of executing his will, the Deceased had capacity to appreciate the claims made by others on his estate, satisfying the third limb of the Banks test. He therefore had the necessary capacity to make the Will.

Cases referred to:

James v James and others [2018] EWHC 43 (Ch)

Banks v Goodfellow (1870) L.R. 5 Q.B. 549

Walker (Deceased), Re [2014] EWHC 71 (Ch), [2015] C.O.P.L.R. 348


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