Banks v Goodfellow 1870

Banks v Goodfellow is a key case on the test for determining testamentary capacity. Although the law has developed since this case, the principles have not changed.

A person making a Will:

  • must understand the nature of the act and its effects
  • must understand the extent of the property of which they are disposing
  • must be able to comprehend and appreciate the claims to which they ought to give effect
  • must not have a disorder of the mind which “poison[s] his affections, pervert[s] his sense of right, or prevent[s] the exercise of his natural faculties” per Cockburn CJ.

However, just because someone has lost the capacity to make a decision in relation to some area of their life, does not mean that they are incapable of disposing of their property by Will.

The testator in question had, at a certain point in his life, been confined to a ‘lunatic asylum’; and at the time he made his Will, he experienced certain delusions. However, the delusions could not be connected with any dispositions in the Will. The testator was still capable of having the required knowledge and appreciation of the facts in relation to the making of a Will disposing of his property. Mental disease could be selective.

Per Cockburn CJ:

“The pathology of mental disease and the experience of insanity in its various forms teach us that while, on the one hand, all the faculties, moral and intellectual, may be involved in one common ruin, as in the case of the raving maniac, in other instances one or more only of these faculties or functions may be discovered, while the rest are left unimpaired and undisturbed.”

“It is essential to the exercise of such a power that a testator shall understand the nature of the act 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, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”