Banks -v- Goodfellow Confirmed as THE Test for Testamentary Capacity

The High Court of Justice has confirmed in the case of Walker v Badmin (2014) that the correct test for determining testamentary capacity is that which set out in the dusty old case of Banks v Goodfellow (1869) rather than the test set out in sections 1 to 3 of the relatively shiny Mental Capacity Act 2005 (MCA 2005).

The trial took place over the course of 10 days in June 2014 before Mr Strauss QC. Judgement was delivered on 20 November 2014.

Background to the case

The case involved the estate and will of Elizabeth Jane Walker (“Mrs Walker”).  Mrs Walker had two daughters, Alison and Jennifer, who were the claimants.  Mrs Walker married her first husband, Jennifer and Alison’s father, on 25 March 1981.  In March 2007, Mrs Walker left her husband and took up residence with the first defendant (“Mr Badmin”) who was 23 years her junior.

In June 2009 Mrs Walker was diagnosed with a terminal, malignant brain tumour from which she died on 18 February 2010.  Shortly prior to her death, she petitioned for divorce and executed a new will on 3 January 2010. A decree absolute was granted on 28 January 2010.

At the time of her death, Mrs Walker’s main assets were:

  1. Her 50% interest in the matrimonial home
  2. A claim to a share of Mr Walker’s (her first husband’s) pension assets
  3. A pension lump sum payment of £45,643.12 which was paid into Mrs Walker’s and Mr Badmin’s joint account

The will

The terms of her will provided for Mrs Walker’s share in the matrimonial home and any other property she owned to be held on trust for Mr Badmin for life and thereafter to her daughters in equal shares.  The residue of her estate was left as to 50% to Mr Badmin and as to 25% each to her daughters in equal shares.  She also signed a letter explaining her reasons for doing this, which the claimant said was written by Mr Badmin.

The claim

Mrs Wilson’s daughters challenged the will on the grounds that their mother did not have capacity to make it, and did not know of or approve its contents.  They alleged that she would never have, but for her illness, made a will which had the effect that it did and they relied upon factual and expert evidence which they said demonstrated that by early January 2010 she no longer had testamentary capacity.  Mr Badmin relied on other evidence, both factual and expert, to the opposite effect.

The Law

The test of testamentary capacity established in the case of Banks v Goodfellow is:- 

“It is essential that a testator (1) shall understand the nature of the act and its effects; (2) shall understand the extent of the property of which he is disposing; and (3) shall be able to comprehend and appreciate the claims to which he ought to give effect, and; with a view to the latter object, (4) that no disorder of mind shall poison his affections, pervert his sense of right or pervert the exercise of his natural faculties; (5) that no insane delusions shall influence his mind in disposing of his property and bring about a disposal of it which if his mind had been sound, would not have been made.” (We have added numbers for convenience).


The test of capacity established in the Mental Capacity Act 2005 is:- 

Section 1- 
  • A person must be assumed to have capacity unless it is established that they lack capacity; 
  • A person is not to be treated as unable to make a decision unless all practicable steps to help them to do so have been taken without success; 
  • A person is not to be treated as unable to make a decision merely because they make an unwise decision.
Section 2- 

A person lacks capacity in relation to a matter if at the material time they are unable to make a decision for themselves in relation to the matter because of an impairment of, or a disturbance in the functioning of, the mind or brain; 

It does not matter whether the impairment or disturbance is permanent or temporary; a lack of capacity cannot be established merely by reference to – 

  • (a) a person’s age or appearance, or  
  • (b) a condition of their, or an aspect of their behaviour, which might lead others to make unjustified assumptions about their capacity; 

Any question whether a person lacks capacity within the meaning of this Act must be decided on the balance of probabilities.

Section 3- 

A person is unable to make a decision for themselves if they are unable – 

  • (a) to understand the information relevant to the decision, 
  • (b) to retain that information, 
  • (c) to use or weigh that information as part of the process of making the decision, or 
  • (d) to communicate his decision (whether by talking, using sign language or any other means). 

A person is not to be regarded as unable to understand the information relevant to a decision if they are able to understand an explanation of it given to them in a way that is appropriate to their circumstances (using simple language, visual aids or any other means). 

The fact that a person is able to retain the information relevant to a decision for a short period only does not prevent them from being regarded as able to make the decision. 

The information relevant to a decision includes information about the reasonably foreseeable consequences of – 

  • (a) deciding one way or another, or 
  • (b) failing to make the decision. 

The judgment on lack of capacity 

The main difficulty in the case arose from doubt as to whether Mrs Walker fully understood not what she was doing, but its ramifications.  The judge stated that whether a lack of understanding in relation to matters of this kind robs a testator of capacity is controversial and may depend on whether the common law as to testamentary capacity has been replaced by the provisions of the mental capacity act 2005, which came into force on 1 April 2007, before the will in this case was executed.

The judge’s first impression was that Banks v Goodfellow was indeed replaced by the provisions of MCA 2005.  However, counsel for the first and second defendant persuaded the judge that this was wrong because while one of the purposes of the MCA 2005 is to govern the making of a will by the court on behalf of a person without capacity in his lifetime, MCA 2005 is not intended to affect a retrospective decision by the court as to whether a testator had capacity to make their own will.

Therefore, on the facts, applying Banks v Goodfellow and Simon v Byford, it was held that in so far as Mrs Walker was unable to understand the full consequences of the dispositions in her will, it did not affect her testamentary capacity.  One of the reasons for this is that such inability as there was arose, not from mental incapacity, but from a failure to take enough legal advice.  On this basis, even if MCA 2005 was applied, the result would have been the same.

The judgement on the want of knowledge and approval

The starting point in cases of this type is the proposition that, where there are “circumstances that ought generally to excite the suspicion of the court”, it is for whoever seeks to prove the will to remove the suspicion and establish the testator knew and approved of its contents.  Such suspicion was said to apply in this case.

Mrs Walker was very ill, the instructions for drawing up the will were to a substantial extent given by Mr Badmin (the main beneficiary) and there was no direct evidence that Mrs Walker read the will or had it read to her.  The question for the court was to decide whether the burden of proof had been discharged on all the evidence taken as a whole.

The court heard evidence from six witnesses on behalf of the claimants and 10 witnesses on behalf of the defendant.  The claimants’ expert witness was a senior house officer who treated Mrs Wilson.  He considered that she lacked capacity in June 2009 to decide whether to have a recommended operation.  She was suffering from delusions and confusion which affected her capacity to make decisions.  By July 2009, it was considered by her consultant clinical oncologist (the defendants’ witness) that Mrs Walker had the capacity to take decisions about her treatment.  Over the following months, evidence from friends, treating doctors and Mrs Wilson’s own e-mails enabled the judge to establish that whilst she was still possibly troubled by occasional insane delusions and hallucinations she was in full possession of her faculties.  

In September 2009 Mrs Walker attended a family mediation in order to deal with the division of the matrimonial assets.  Her solicitor’s notes showed that she was able to give clear information and her solicitor said in evidence that she had no doubt that Mrs Walker was able to understand the advice given to her.

It was Mr Badmin who contacted will writing service to instruct them to prepare mirror wills for himself and Mrs Walker.  The day before the telephone will appointment, Mrs Wilson was visited by a palliative care clinical nurse specialist who said he found her tired but alert, orientated and responsive.  Despite the will writer being told of Mrs Wilson’s brain tumour upon taking her instructions she asked three questions; is your eyesight sufficient to read questions?  Can you read right without difficulty?  Are you of sound mind and understand the nature and purpose of making this will. No further enquiry was made nor was a medical examination suggested.  Shortly after this conversation Mrs Wilson asked close friend whether she would be willing to be an executor of her will, explaining that she had decided to make a will in favour of Mr Badmin.  The judge found this to be important evidence in that it showed Mrs Walker had formed an intention of making a will which would mainly benefit Mr Badmin and further, that the medical records at the time did not suggest she was confused.

The judge heard the telephone recording between Mrs Walker and the will writer on 29 December 2009 when they discussed revisions to her will in order to provide Mr Badmin with a life interest in her share of the matrimonial home.

The judge found that despite Mrs Wilson’s instructions being limited to a few words she responded to the questions in a timely fashion answering coherently and to the point.

The will was executed on 3 January 2010 witnessed by two neighbours whose evidence was that Mrs Wilson acted no different to how she had been prior to her illness and that they had no doubt that her will was made with strength and conviction.

Crucially, the two medical experts in the case both gave evidence as to Mrs Walker’s testamentary capacity based on the Banks v Goodfellow criteria.  They were agreed that Mrs Walker lacked capacity in June and July 2009, again in early October 2009 and from 21 January 2010 until her death.  They also agreed that she suffered a degree of cognitive decline by the time she gave instructions for, and executed, her will.  However they disagreed on the central issue, whether she had testamentary capacity at the time of execution.  The crucial point in this case was that neither medical expert saw Mrs Walker in her lifetime and the judge therefore attached arguably more weight to the body of e-mails which Mrs Walker sent when assessing the question of whether or not she had testamentary capacity.

In applying the individual elements of the Banks v Goodfellow test the judge found the following:

  1. No evidence suggested that Mrs Walker did not understand the nature and effect of a will
  2. That overall Mrs Walker was well aware of the nature of her assets, despite a general level of uncertainty as to the value
  3. That Mrs Walker appreciated the claims to which she might give effect which triggered, no doubt, the letter of wishes which she signed
  4. that the evidence showed she retained her love and affection for her daughters throughout

The finding in this case provides a vital clarity as to the test to be applied in challenges to the validity of a will based on testamentary capacity.   

If you require advice on challenges to the validity of a Will, either as a claimant or defendant, contact Contentious Probate Lawyer, Naomi Ireson, on 0808 139 1599 or at [email protected] for FREE initial advice.

Banks -v- Goodfellow Confirmed as THE Test for Testamentary Capacity