The “Banks v Goodfellow Test”
The test for testamentary capacity, as established in Banks v Goodfellow, emphasises four essential elements:
- Understanding the act:Did the testator comprehend the nature of making a will and its consequences?
- Knowledge of Estate:Did the testator know the nature and value of their estate?
- Understanding Consequences:Did the testator grasp the implications of including or excluding specific individuals in the will?
- Mental Disorder:Was the testator free from any disorder of the mind that could influence their views on how they choose to dispose of their estate?
Failure to meet any of these criteria can render a will invalid.
Evolution of the Law – Key v Key  EWHC 408 (Ch)
The legal landscape surrounding testamentary capacity has evolved with advances in medicine and science. In the 2010 case of Key v Key, a husband’s grief and devastation after the recent loss of his wife led to “dementia-like symptoms” when he provided instructions for a new will just a week after her passing. The court held that these circumstances invalidated the will.
Identifying Lack of Capacity
Recognising signs of testamentary incapacity after death often involves examining medical records, will-making files and the evidence of individuals who knew the testator. While medical records may provide clues, a comprehensive understanding typically emerges from a combination of various elements.
Capacity is time and issue specific and every case will turn on its own facts and evidence. As such, assessing testamentary capacity requires careful consideration of the Banks v Goodfellow criteria and key evidence.
If you have concerns over a will or are facing a will dispute contact us to speak to one of our lawyers.