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Assessing legal capacity when making a will: Why a 150 year old case still remains relevant today

In order for a testamentary will to be valid the ‘testator’ (i.e. the person making the will) must be of sound mind, memory and understanding. The process of meeting this criteria is referred to as having ‘testamentary capacity.’

Despite being an 1870’s case, the Banks v Goodfellow[1] criteria for testamentary capacity continues to be seminal authority for assessing testamentary capacity.

Factual history

The case of Banks v Goodfellow considered the validity of Mr Banks’ will that he made 2 years before his death.

Mr Banks suffered from paranoid schizophrenia and left his sizeable estate comprising 15 houses to his niece. His niece died two years later and passed her inheritance to her half brother who was not a relative of Mr Banks.

Mr Banks’ son brought proceedings to have his father’s will set aside on the grounds that he was of unsound mind when he made his will because he suffered from paranoid delusions.

What was decided?

The claim brought by Mr Bank’s son failed as it was held that Mr Banks was mentally capable of making his will.

The Court held that Mr Banks carefully managed his financial affairs, was capable of understanding the value of his property including instructing his agent regarding rents and lease terms.

In short, even though Mr Bank’s may have been regarded as still suffering partial unsoundness of the mind, he still had the capacity to make his will and it was therefore considered valid.

The Court laid down important factors to ensure the testator has capacity. In order to have mental capacity the testator must understand:

  1. What it means to make a will
  2. What assets he/she has and are leaving to others
  3. Who the people are that could make a claim on the estate and what moral obligation is owed to these people and;
  4. They should not be suffering from a mental disorder that influences the distribution of the estate.

Why does the case continue to have relevance today?

Banks v Goodfellow provides us with a well-established framework for assessing testamentary capacity. However, questions are frequently raised of how best it serves us in the 21st century given the increasing prevalence of cognitive diseases such as dementia, the rise of complex estate planning such as blended families, and the tensions between the legal and medical profession in assessing capacity.

In practice, Banks v Goodfellow and its application today shows us that the test of capacity is different for every will and for every testator. Legal practitioners should be wary if there has been a significant departure from previously expressed wishes in earlier wills which may signal a possible change in capacity.

This short article does not provide legal advice and should not be relied as such. If you have any question regarding you wills and estate matter, get in touch with us.

[1] Banks v Goodfellow (1870) LR 5 QB 549.

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