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11 December 2014 | Comment | Article by Roman Kubiak TEP

High Court confirms the Banks v Goodfellows test for mental capacity when making a will

Eleanor comments upon the recent case of Walker v Badmin, which confirmed the relevant test for mental capacity when making a will or looking to contest a will is the long established Banks v Goodfellow test and not the test set out in the Mental Capacity Act 2005.

As Paula Adams recently discussed in her blog Testamentary capacity and the “golden rule”, the test for establishing whether a testator has mental capacity to write a will was set down in the case of Banks v Goodfellow (1870).

Under the Banks v Goodfellow test, the testator must:

  • understand the nature of the will and its effect;
  • have some idea of the extent of the property of which they are disposing under the will; and
  • be aware of the persons for whom the testator would usually be expected to provide (even if he chooses not to) and be free from any delusion of the mind that would cause him reason not to benefit those people.

John Banks, the testator in Banks v Goodfellow, had mental health problems and had been confined to a lunatic asylum for some years. After he was discharged from the asylum, he continued to suffer from some delusions; in particular, he had a strong aversion to a gentleman called Featherstone Alexander, who he believed was persecuting him. In his will, Banks left his estate to his young niece, Margaret Goodfellow. He had lived with his niece following the death of her mother, Banks’s sister. Margaret sadly died two years after her uncle, at the age of 20.

Margaret died intestate, and her estate passed to her paternal half-brother, who was no relative of John Banks. John Banks junior, the son of the testator’s half-brother, then contested the will. He argued that the testator did not have testamentary capacity.

It was found that Banks’s will was valid. Whilst Banks did suffer from mental illness which caused delusions of the mind, these delusions did not influence his decision regarding who should benefit from his estate.

The Mental Capacity Act 2005 introduced a new test of capacity, under which an individual should be assumed to have capacity unless proved otherwise. To satisfy the test, it is necessary for an individual to understand all information relevant to the decision that is being made, to include any consequences of the decision that are reasonably foreseeable. Under the Mental Capacity Act 2005, a person is not to be deemed as incapable of making a decision merely because he makes an unwise decision.

The general view of practitioners has been that the Mental Capacity Act 2005 test should be used to complement the Banks v Goodfellow test, but that it does not supersede it. The precise legal position has, however, been relatively unclear until the recent High Court judgment in Walker and another v Badmin and others [2014] All ER (D) 258.

The testatrix in Walker v Badmin was 53 years old and suffering from a brain tumour. In her will, she left her property on a life interest trust for her partner, and divided her residuary estate into two shares, one of which passed to her partner and the other to her two daughters. She died five weeks later and her daughters challenged her will on several grounds, including lack of testamentary capacity. The case attracted some press attention as the estate’s assets were fairly considerable, comprising a farm worth over £1million. The testatrix was very recently divorced from her estranged husband and had been living with her 35 year old partner, Mr Badmin, for two years.

It was found that the testatrix did have capacity to make a will, and the will was upheld.

In his judgment, Strauss LJ spent some time considering the tests for capacity in Banks v Goodfellow and the Mental Capacity Act 2005. He concluded that the Mental Capacity Act 2005 test is more difficult to satisfy than the Banks v Goodfellowtest, for several reasons.

1. Burden of proof

First, under the Mental Capacity Act, capacity is assumed unless proved otherwise. Under the Banks v Goodfellow test, the court will presume capacity and the burden of proof is on the person contesting a will to raise a real doubt. If that real doubt is raised, the burden of proof shifts to the person who claims the will is valid, to establish capacity.

2. Requirement to understand all information relevant to a decision

Secondly, the Mental Capacity Act 2005 requires the person to understand all the information relevant to the making of a decision. The Banks v Goodfellow test arguably does not go this far, requiring the testator to understand the claims to which he ought to be giving effect, but not necessarily to remember and understand all the surrounding relevant information.

3. Reasonable foreseeability

Thirdly, under the Banks v Goodfellow test, it is not necessary to understand the reasonably foreseeable consequences of the will. It is simply necessary for the testator to understand who he ought to be considering to benefit. This point has also been considered in recent cases where a party looks to contest a will, such as Simon v Byford, which Leah Steele has previously commented on, here.

Strauss LJ’s view was that the Mental Capacity Act 2005 was not intended for the use of the courts in making decisions regarding the testamentary capacity of deceased testators. The standard required for testamentary capacity has historically been quite low, as testators are often quite elderly, and he did not believe that it was the legislature’s intention to override this.

In Walker v Badmin, the testatrix would actually have satisfied both the Banks v Goodfellow and the Mental Capacity Act 2005 tests, so the result would have been the same whichever test was applied and the comments made by Strauss LJ regarding the applicable test were academic. That said, Strauss LJ’s judgment is a welcome judicial statement of the correct test for testamentary capacity.

Author bio

Roman Kubiak TEP


Roman Kubiak is a Partner and Head of the market leading Private Wealth Disputes team.

He advises across the whole spectrum of private wealth disputes, with a particular focus on high value, complex and cross-border disputes including: trust disputes, breach of trust claims and applications to remove trustees; will disputes, particularly those with an international element; claims under the Inheritance (Provision for Family and Dependants) Act 1975; and claims for equitable relief under proprietary estoppel, constructive trusts and resulting trusts.

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