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Capacity to Make a Will – the test



Whether an individual had capacity to make a will is a question that Courts are being asked to decide more and more often these days. In most cases where there is a dispute over a will this question is at the very centre of the issue.


The test that governs this area of law goes back a very long time. There are very few cases, if any, that date from 1870 that are mentioned so often in the Courts today as Banks v Goodfellow. Not only is this case still authoritative in the United Kingdom, but its influence has spread around the world and it is still regarded as the leading decision in this area. Indeed, so important is this case, it has also influenced questions of capacity in other areas such as the capacity to make a Lasting Power of Attorney.


From time to time lawyers and academics question whether the test is still relevant. After all there have been made a lot of changes in the world and, perhaps more importantly, in our understanding of the mind and the way that it works. Should we not be taking a more modern approach to this important question, an approach which takes into account the advances in medical science over the last almost 150 years?


A brief glance at the facts of the Banks v Goodfellow case does seem to illustrate just how far we have moved on since 1870. In that case the man who made the will that gave rise to the dispute was a John Banks. He might have been a draper by profession, but, whatever he did, he certainly seems to have been successful at it, because by the time of his death he owned 15 cottages in Keswick in the Lake District. Unfortunately Mr Banks suffered from more than a few difficulties. During his lifetime he was confined to the county lunatic asylum, probably on more than one occasion and he certainly suffered delusions. In particular, for reasons that are not recorded, he took a violent aversion to a man named Featherstone Alexander. In fact, so fixed were these feelings, even the death of Mr Alexander was insufficient to persuade Mr Banks that he was not still being pursued and molested by the man!


Mr Banks also suffered from epilepsy, a condition treated in those days by applying mustard spread on to brown paper directly to the skin to make it “glow”.


On 2 December 1863 Mr Banks made a new will. Even Solicitors did not have it quite so easy in those days. The Solicitor that was instructed to make the new will have to travel 20 miles to visit his client, on a day when there were gale force winds and probably rain or snow. Roads were not what you are today. Of course, there were no cars so the journey would have been made either by horse-drawn carriage, or by riding a horse itself!

Just under 2 years later Mr Banks died. His death certificate records the causes of his demise is epilepsy, insanity and coma. Under the terms of the 1863 will his whole estate passed to his niece, Margaret. Sadly, within another 2 years Margaret died. She was only 20 and therefore still a minor under the laws of the day. As a consequence her estate, including the 15 cottages that she had inherited from John Banks, passed to her half brother, a man who was not related to all to Mr Banks.


It was the son of Mr Banks’s own half brother who brought the proceedings seeking to have the will set aside on the grounds of lack of capacity. After all, this was a will of a man who was a certified lunatic, who clearly suffered a mania about Mr Alexander and who was also epileptic, an illness that was not understood in the 19th century.


The challenge to the will however failed. The Court of Queens Bench (the precursor of the Court of Appeal) considered a whole range of previously decided cases on the question of testamentary capacity. Their deliberations took in 8 English cases, 4 French, one German, one Italian and 5 American decisions. They also look at Roman and Dutch law. It is possibly because of the breadth of this enquiry that the decision is taken on such worldwide significance.

Capacity to Make a Will

The conclusion that the Court came to was that in order to have the capacity to make a will and individual needs:

  • To understand the nature of what they are doing and the effect of the will that they are proposing to make

  • To understand the extent of the property that they are disposing of – though subsequent Court decisions have made it clear that it is not necessary that the person making the will knows the exact value of their property

  • To be able to comprehend the claims (moral or otherwise) to which they ought to give effect

  • To be free of any delusion which would influence the disposition of the property and which will bring about a disposal of it which, if the mind had been sound, would not have been made.


Of course there have been tremendous advances in medicine since 1870 and we now have the Mental Capacity Act 2005 which sets out a whole range of rules, regulations and codes of practice. Nonetheless the test laid down in Banks v Goodfellow remains good law. This means that even though an individual may suffer from mental illness, or perhaps the early stages of dementia, this does not necessarily mean that they will be unable to make a valid will. Each case will depend upon its particular facts and our experienced advice is always at hand.

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