Is Banks v Goodfellow still good law?

Yes. Banks v Goodfellow (1870) remains the leading authority on testamentary capacity in England and Wales and continues to be applied in probate disputes and contested estate proceedings.

Is testamentary capacity assessed under the Mental Capacity Act 2005?

No. Testamentary capacity is governed by the common law test established in Banks v Goodfellow. The Mental Capacity Act 2005 does not replace this test in will cases.

What is the difference between lack of capacity and undue influence?

Lack of capacity concerns whether the testator understood the nature and effect of the will and was free from disorder influencing the dispositions. Undue influence concerns coercion or pressure exerted by another person.

Does dementia automatically invalidate a will?

No. A diagnosis of dementia does not automatically remove testamentary capacity. The court will assess whether the testator satisfied each limb of the Banks v Goodfellow test at the time the will was executed.

Who has to prove testamentary capacity?

A duly executed will is presumed valid. However, if a real doubt is raised regarding capacity, the burden shifts to the party propounding the will to prove capacity on the balance of probabilities.

Banks v Goodfellow (1870)

The Legal Test for Testamentary Capacity Explained

When a person makes a will in England and Wales, the legal test for capacity is not governed by the Mental Capacity Act 2005.

Instead, testamentary capacity is determined by the common law test established in: Banks v Goodfellow (1870) LR 5 QB 549 Despite being over 150 years old, this case remains the leading authority on capacity to make a will.

It continues to guide:

Will drafting
Probate disputes
Contested estates
Retrospective capacity assessments
Expert reports for court proceedings

This guide explains what the test requires and how it is applied today.

The Background to Banks v Goodfellow

The testator must be able to:

Identify those who might reasonably expect to benefit
Understand family relationships
Consider competing moral claims

They are not required to treat beneficiaries equally.
They must simply be capable of rationally considering those claims.

4. Absence of Delusion Influencing the Will

This is often the most contested element. A will may be invalid if:

A mental disorder directly affects the distribution of the estate
A delusional belief leads to exclusion or unequal treatment
Paranoia or fixed false beliefs distort family relationships

The critical issue is causation. A disorder must materially influence the testamentary decision.If the disorder does not affect the will, capacity may still be present.

3. Appreciating the Claims of Potential Beneficiaries

If a person lacks capacity for a specific decision, any act done or decision made must be in their best interests.

2. Understanding the Extent of Their Property

The testator does not need a precise inventory of assets.

They must have a general understanding of:

The nature of their estate
The approximate size or value
The main components of their assets

A serious misunderstanding of their financial position may undermine capacity.

1. Understanding the Nature and Effect of a Will

The testator must understand:

That they are making a will
That the will takes effect on death
That it distributes their property

They do not need technical legal knowledge.
They must understand the essential concept and practical consequences.

The Banks v Goodfellow Test

To have testamentary capacity, a person must:

Understand the nature and effect of making a will
Understand the extent of the property being disposed of
Comprehend and appreciate the claims of those who might reasonably expect to benefit
Not be affected by a disorder of the mind that influences the dispositions in the will

All four elements must be satisfied.

Relationship with the Mental Capacity Act 2005

Testamentary capacity remains governed by common law, not by the Mental Capacity Act 2005. However:

Courts sometimes use MCA-style functional reasoning as a structured way to analyse evidence.
The MCA framework does not replace or override Banks v Goodfellow in will cases.

Recent High Court authority has reaffirmed that Banks v Goodfellow remains the correct legal test for testamentary capacity.

The two frameworks are legally distinct.

The “Golden Rule”

In cases involving elderly or seriously ill testators, practitioners often follow what is known as the

Golden Rule:

Where a will is prepared for a person who is seriously ill or of advanced age, a medical practitioner should assess and record testamentary capacity contemporaneously.

The Golden Rule is not a rule of law. Failure to follow it does not invalidate a will - but it can increase the risk of dispute.

Common Grounds for Dispute

Challenges to testamentary capacity frequently arise where:

The testator had dementia or cognitive impairment
A new will significantly departs from previous versions
A beneficiary was involved in drafting
Close family members were excluded
There are allegations of undue influence

In contested probate matters, courts examine:

Medical records
GP and hospital notes
Care records
The solicitor’s will file
Witness evidence
Expert psychiatric opinion

Retrospective Testamentary Capacity Assessments

In many disputes, the testator has already died.

In those cases, courts may require a retrospective capacity assessment, based on documentary and witness evidence.

Experts must apply the Banks v Goodfellow criteria directly.

The assessment must address each limb of the test and analyse whether any mental disorder influenced the dispositions made.

Key Legal Principles

Banks v Goodfellow establishes that:

Mental illness does not automatically remove testamentary capacity.
Capacity is decision-specific and time-specific.
The central question is whether the testator understood what they were doing and was free from disorder affecting the decision.
The focus is on rational understanding and freedom from delusion influencing the will.

Burden and Standard of Proof

In disputes concerning testamentary capacity, the starting point is that a duly executed will is presumed valid.

However, where a real doubt is raised as to capacity, the burden shifts to the party propounding the will to prove that the testator satisfied the Banks v Goodfellow criteria at the time the will was executed.

The legal standard of proof is the balance of probabilities.

The court will consider the evidence as a whole, including:

The circumstances surrounding execution
The drafting solicitor’s attendance notes
Medical and care records
Lay witness evidence
Expert opinion

Capacity must be assessed at the time the will was made. Evidence before and after execution may be relevant insofar as it assists the court in determining the testator’s mental state at the material time.

Where a will appears rational on its face and has been professionally drafted, that may support a finding of capacity - but it is not determinative.

Ultimately, the court must be satisfied that each element of the Banks v Goodfellow test is met.

Frequently Asked Questions

Yes. It remains the leading authority on testamentary capacity in England and Wales and continues to be applied by the High Court.
No. The MCA 2005 does not replace Banks v Goodfellow for wills, although functional reasoning similar to the MCA framework may be used to structure evidence.
Lack of capacity concerns cognitive ability.

Undue influence concerns coercion or pressure.

They are separate legal doctrines.
No. Many individuals with dementia retain testamentary capacity, depending on the severity and whether the condition affected the will-making decision.
If a will appears validly executed, it is presumed valid.

However, if a real doubt is raised, the party propounding the will must prove capacity on the balance of probabilities.