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

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

One of the disputes which often arises on death is where one party, usually a family member who has been excluded from the Will, seeks to set aside that Will.  This is often on the basis that the Will maker lacked the necessary mental capacity at the time they gave instructions for the Will.

For many years the test for assessing such capacity was a test established in the case of Banks -v- Goodfellow which dates back to the 1800’s.

That test essentially requires the Will maker to:

  • Understand that they are making a Will;
  • Understand the extent of their estate; and
  • Understand the claims against their estate to which they ought to at least consider giving effect.

Subsequently, the Mental Capacity Act of 2005 sought to define the test for capacity.  In the recent case of Clitheroe v Bond the court were required to look at whether the old Banks -v- Goodfellow test was the correct approach to take or whether in fact the test had been overridden by the 2005 Act.

The 2005 Act provides that it must be assumed that a person has capacity unless and until it is established otherwise.  The Act goes further and requires an individual not to be treated as being unable to make any decision unless all steps have been taken to help them with that decision.

It is clear that the two differing approaches to assessing capacity could in fact result in the same outcome and in a lot of cases probably do.  However, on occasions the outcome could be significantly different.

In the case of Clitheroe v Bond the Judge took the view that in fact the assessment outlined in the 2005 Act was intended to be adopted where the individual was still alive and was not intended to replace the Banks -v- Goodfellow test.

Stepping back it seems obvious that this is the correct approach.  There are a great many Wills which will have been prepared on the basis that the Will maker had capacity having regard to the Banks -v-  Goodfellow test.

It is interesting to look back at the facts of the Banks -v- Goodfellow test.  Since the 1800s it is likely that society’s approach to mental capacity has moved on considerably so why does it remain good law.

Mr Banks it seems was admitted to the County Lunatic Asylum aged approximately 30.  Whilst he was subsequently discharged it is reported that he continued to suffer some severe delusions.

Margaret, his sister died leaving a husband, Thomas Banks Goodfellow and a child also named Margaret Banks Goodfellow.  The young Margaret for whatever reason lived with her mentally impaired uncle.  Her father, Thomas remarried and had a son with his new wife.

The mentally impaired Mr Banks had made a Will leaving his estate to his sister who sadly predeceased him.  After her death, he instructed solicitors to prepare a new Will leaving his estate to his niece, Margaret.  He died about 18 months later and Margaret inherited his entire estate at the age of 18.  Interestingly his death certificate recited the cause of death as epilepsy, insanity and a subsequent coma.

Sadly, Margaret died two years later without any Will and her estate passed to her half-brother who in fact was not at all related to the late Mr Banks.  This in itself perhaps emphasises that convoluted families existed even back then and are not just a modern phenomenon.

As such, the late Mr Banks’ nephew, Jacob brought an action contesting validity of the Will on the basis that his uncle had been a “certified lunatic”.

The jury had to decide whether the late Mr Banks was capable of having the knowledge and appreciation of the facts surrounding the making of his Will and was free from delusions affecting his ability to make those decisions. The jury decided that he did have the relevant capacity and that the Will was valid.

The jury’s decision was appealed but the court held that notwithstanding the delusions which Mr Banks did suffer from, those delusions had no influence on his decisions in terms of making his Will.

In Banks -v- Goodfellow, there was a wide range of case law considered: numerous English Law cases together with several foreign cases.  It is perhaps because it was so thoroughly considered that it has become and remains the leading authority for testamentary capacity.

Having read the facts in Banks -v- Goodfellow, it would be easy to say that there is now a more modern approach to mental illness which is so different that this case cannot surely stand the test of time.  Indeed, it may even be that with modern treatment available, Mr Banks may never have been diagnosed or confined as he was.

However, the point is that the test to be considered is whether the Will maker is able to understand the nature of their estate and the effect of the instructions they are giving and that they are not affected by any delusion which is relevant to the decisions they are making.

Whilst therefore at first glance it would suggest that the Banks -v-  Goodfellow test is somewhat out-of-date, considering it in more detail it is clear that the decision remains good and in fact the test is exactly the same today as it would have been back then.

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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 Amanda Melton by calling 01494 790047 or emailing amanda.melton@ibblaw.co.uk.