Banks -v- Goodfellow confirmed as THE test for testamentary capacity

The appropriate test for testamentary capacity in a will dispute

The High Court has confirmed that the correct test for determining testamentary capacity is that which is set out in the dusty old Victorian case of Banks v Goodfellow, rather than the test in the relatively shiny-new Mental Capacity Act.

Background to the case

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

In 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 her ex-husband’s pension
  3. A pension lump sum payment of £45,643.12 which was paid into her 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 claimants said was written by Mr Badmin.

The claim

Mrs Wilson’s daughters challenged the will on the grounds that their mother did not have testamentary 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.

The Law

The test for 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).

By contrast, the test for capacity established in the Mental Capacity Act 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 testamentary 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 which came into force 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.  However, counsel for the first and second defendant persuaded the judge that this was wrong, because while one of the purposes of the MCA is to govern the making of a will by the court on behalf of a person without capacity in his lifetime, the MCA is not intended to affect a retrospective decision by the court as to whether a testator had capacity to make their own will.

Therefore, applying Banks v Goodfellow the court decided 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 the  MCA was applied, the result would have been the same.

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

  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 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 our free legal helpline on 0333 888 0407. Alternatively you can simply send an email to [email protected] and we will get straight back to you.

Banks -v- Goodfellow confirmed as THE test for testamentary capacity