Testamentary Capacity: Can You Still Bank on Banks – v – Goodfellow?

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The recent case of Clitheroe -v- Bond has looked again at the question of whether in terms of assessing testamentary capacity the court should still rely on the case of Banks -v- Goodfellow decided in 1870 or whether that has been superseded by the Mental Capacity Act 2005.

The dispute between a brother and sister, in relation to the validity of two wills, involved a five day trial, nine factual witnesses and two experts.  The original trial was conducted on the basis that Banks -v- Goodfellow remained good law.

Under that, in order to have the mental capacity to make a will the will maker:

  1. Should understand the nature of the act of making a will and its effects
  2. Should understand the extent of the property of which they are disposing by will
  3. Should be able to comprehend and appreciate the claims to which they ought to give effect

In addition, no disorder of the mind should poison their affections, pervert their sense of right or prevent the exercise of their natural faculties, and no insane delusion should influence their will in disposing of their property and bring about a disposal of such property, which if their mind had been sound, would not have been made.

Although the court decided that as this had not been argued at the trial, the issue of whether the correct test was now under the Mental Capacity Act  could not be considered on the appeal, the judge then went on to consider what she thought the correct test was.

In the event she decided that the case of Banks -v- Goodfellow had stood the test of time and was sufficiently flexible to deal with modern conditions.  In particular, of course, society has a very different approach to mental capacity issues now than it would have done in 1870 as recognised by the passing of the Mental Capacity Act.

Under the Mental Capacity Act, a person is assumed to have mental capacity unless and until it is established otherwise and they are not to be treated as being unable to make a decision unless all practicable steps have been taken to help them but without success.

In a large number of cases, the outcome may be the same whichever test is applied.  In the judge’s view the Mental Capacity Act was intended only to deal with issues relating to the mental capacity of living persons and it was not the intention of the Act to overrule this long-established authority.

The judge went on to say that if the law is to be changed, that is really a matter for the Law Commission and ultimately for parliament rather than for the courts.  That must be right as there are a vast numbers of wills in existence all prepared on the basis that Banks -v- Goodfellow remains good law and if the law effectively changed overnight, that would raise doubts in some cases as to the validity of those wills.

Despite the much greater 21st century knowledge of impaired mental capacity, there are still a large number of cases which go to trial each year in which highly experienced medical practitioners disagree as to whether the will-maker did or did not have mental capacity.

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The information given here is intended for general information purposes only and should not be taken as legal advice.

For specific guidance relevant to your situation, please contact our contentious probate specialist Paul Grimwood by calling 01895 207859 or emailing paul.grimwood@ibblaw.co.uk.