Banks vs Goodfellow a case commentary

March 23, 2023

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We see it often, claims that a person lacks mental capacity to prepare a valid Will, and with an ageing population and medical advances, you won’t be surprised to hear that these types of claims are on the rise.


What is rather surprising is that the law setting out the relevant factors in such a claim comes from a case that was heard in 1870. Yes, you read that correctly. Despite being over 150 years old nothing has yet come close to change the way a Court will consider such a case. You may therefore rightly note that this is an important case, and one you will need to know about if you are thinking about preparing a Will, or if you are a practitioner that advises on or prepares Wills for clients.


It is also surprising to note that the case relates to an unsuccessful challenge of a Will.


So what of the facts of the case.


Rather little is known about John Banks (the person who died). However, if one is willing to trawl through the internet they may be able to find that he was born in the early 1810s and that he was a fairly successful businessman (as he died owning a number of properties). It is also possible to find that he had a sister, Margaret Banks, and a half-brother Jacob Banks.


The facts of the case share that John prepared his first Will in 1838, and that he left his entire estate to his sister.  John then suffered with his mental health and in 1841 spent time in the county lunatic asylum (as it was then called). Following his discharge, John suffered with epilepsy over the years and a conceived violent dislike of a local man known as Featherstone Alexander.


Unfortunately John’s sister died giving birth to her only child, Margaret Banks Goodfellow. In 1863 John therefore decided to update his Will. In doing so he replaced his deceased sister as a beneficiary with his niece, Margaret. Around 18 months later John died and, sadly, a further two years later Margaret also died.


At the time of her death Margaret had not prepared a valid Will. As such, her entire estate (including everything she had inherited from John) passed to her half brother, Mr Goodfellow.


Following this course of events, John’s nephew (the son of Jacob Banks) brought a claim to test the validity of the 1863 Will.


So what was decided.


Mr Banks’ claim failed. The Judge held that John was mentally capable of making his Will despite having suffered with delusions regarding Featherstone Alexander (particularly when his name was mentioned) in the past. Nothing in the Will file and from the witness evidence provided was able to persuade the Judge that John was suffering with any such delusion at the time he gave instructions for or when he signed his Will. Accordingly, John’s entire estate passed to Margaret, which in turn passed to Mr Goodfellow.


Unhappy with this result, Mr Banks sought to appeal the Judgment. However, the Judge found no error in the original trial Judge’s handling of the case and so dismissed the appeal. In doing so he set out what is now widely referred to as the test for testamentary capacity.  This can be summarised as:


The testator (being the person making the Will) must


  1. understand the nature of making a Will and the associated consequences;
  2. understand the extent of the property they are disposing of;
  3. be able to comprehend the moral claims to their Estate; AND
  4. not be affected by any disorder of the mind or insane delusion.


Although still a long way to go, there has been a vast upturn in medical understanding of mental health and mental disorders in recent years. Despite this, the Judges in 1870 were able to recognise that a person’s mental health can fluctuate – and at the time John prepared his Will, it appears he was not suffering with any such issues. Accordingly, despite the Judgment being handed down in 1870, it is not surprising to note that this remains good law.


Cara Hough, Partner 


Banks vs Goodfellow, what is it and what does it mean to Will Writers? a detailed factsheet. 


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