Banks v Goodfellow Test – Revisited
What is testamentary capacity?
Testamentary capacity is the legal term used to describe a person’s legal and mental ability to make or alter a valid Will. This concept has also been called sound mind and memory or disposing mind and memory.
The Mental Capacity Act 2005 (“MCA”) regrettably creates a degree of uncertainty as to the appropriate test that ought to be applied to assess capacity when making a Will.
Even the judiciary can’t always agree.
Some Judges believe the case of Banks v Goodfellow has been suspended by the MCA and in Fischer v Diffley (2014) HHJ Dight said he had to apply both the common law test as expounded in Banks v Goodfellows and the statutory test in the MCA 2005.
The tests overlap and will often produce the same result, but not always; the consequences of this are potentially significant. Under the MCA, capacity is assumed unless proved otherwise whereas under Banks v Goodfellows the burden of proof can be shifted if there is sufficient doubt.
HHJ Strauss in Walker v Badmin (2014) considered the interplay between the two tests. It was determined that the correct and only test for testamentary capacity in relation to the validity of a purported Will is the long held common law test in Banks v Goodfellow. However, as this is only a High Court decision it is not inconceivable that the issue may be elevated to the Court of Appeal at some point for further consideration.
Given that there is uncertainty, what steps can you take to minimise it?
If there is any doubt of Capacity, having your Will drawn up by an independent solicitor will help protect you and your beneficiaries. Your legal adviser will take the precaution of assessing capacity and keeping a full record which is admissible in Court if the Will is later challenged.
For further information please contact Vicki Pearce.