Author and Publication
Author: Nellie Supports Ltd
Publication Date: 15/05/2026
Citation
Wills Act 1837, c. 26. Available at: https://www.legislation.gov.uk/ukpga/Will4and1Vict/7/26/contents
Copywright
Copyright © 2026 Nellie Supports Ltd. All rights reserved.
This article is made available for general information, education and professional reference. It may be downloaded, printed and shared for non-commercial purposes, provided that it is reproduced in full, is not altered in any way, and is properly cited as the work of Nellie Supports Ltd. This material must not be edited, adapted, sold, republished, incorporated into commercial products, or used for commercial training, assessment, report-writing or advisory services without prior written permission from Nellie Supports Ltd.
This article does not constitute legal advice, clinical advice or a substitute for a decision-specific professional assessment. Where legislation, government guidance, court forms or external professional materials are referred to, those materials remain subject to their own copyright, licensing and re-use terms.
Banks v Goodfellow and the test for making a will
Banks v Goodfellow (1870) remains the test for testamentary capacity in England and Wales. To make a valid will, a person must understand the nature of the act of making a will and its effects; understand in broad terms the extent of the property being disposed of; and comprehend and appreciate the claims to which they ought to give effect, with no disorder of the mind poisoning their affections or perverting their sense of right in disposing of their property. The Court of Appeal confirmed in Hughes v Pritchard (2022) that this test, rather than the Mental Capacity Act 2005, continues to govern wills. This guide explains each limb and how assessments evidence them.
The four limbs of the Banks v Goodfellow test
Testamentary capacity is governed by the common law test in Banks v Goodfellow (1870) LR 5 QB 549. The person making the will must understand the nature of the act of making a will and its effects, understand the extent of the property being disposed of, comprehend the claims of those who might expect to benefit, and be free from any disorder of the mind that distorts their sense of right or perverts their natural affections. All four limbs must be satisfied.
Why the Mental Capacity Act test does not replace it
It is a common and serious error to assess a will using the Mental Capacity Act 2005 functional test alone. In Walker v Badmin (2014) the court confirmed that Banks v Goodfellow, not the Act, is the correct test for testamentary capacity when the validity of a will is in question, a position followed in James v James (2018). The Act and its Code of Practice remain relevant to good practice, but the legal threshold for a will is the common law test.
Understanding the extent of the estate
The testator does not need a precise valuation or a forensic grasp of every asset. They need a broad and realistic understanding of what they own, including property, savings, investments and any significant debts or earlier gifts. Where an estate is large, complex or includes business or trust interests, the level of understanding expected rises with the complexity of what is being given away.
Appreciating the claims of others
The third limb is where disputes most often arise. The person should be able to bring to mind those who might reasonably expect to benefit, such as a spouse, children or dependants, and weigh their claims, even if they then decide to exclude them. Excluding a close relative is not evidence of incapacity in itself, but the reasoning behind it should be capable of rational explanation.
A disorder of the mind that distorts the decision
The fourth limb addresses delusions, fixed false beliefs or affective disorders that distort the testator's natural affections or judgement. A diagnosis of dementia or mental illness does not by itself defeat capacity. What matters is whether the condition actually influences the disposition, for example a delusional belief about a relative that drives their exclusion from the will.
The Golden Rule and medical evidence
Where a will is made by an elderly or seriously ill testator, the Golden Rule (Kenward v Adams) suggests it should be witnessed or approved by a medical practitioner who satisfies themselves of capacity and records their findings. This is good practice rather than a rule of law, and a will is not invalid simply because it was not followed, but compliance makes a later challenge far harder to sustain.
Evidence that supports a testamentary opinion
A defensible opinion draws on the will instructions, attendance notes, medical and GP records, any cognitive testing, evidence of how the testator explained their wishes, and the circumstances in which the will was made. Suspicious circumstances, late changes, isolation from family, or a beneficiary involved in arranging the will should be recorded and analysed rather than left out.
What a strong testamentary report contains
A strong report sets out the instruction, the date and the will concerned, the Banks v Goodfellow framework applied limb by limb, the evidence reviewed, the assessment findings, an analysis of each limb against the facts, any concerns about pressure or disorder, and a clear conclusion. It should explain its limitations, including any reliance on records or any inability to examine the testator directly.
Key takeaway
Will-making capacity is judged by Banks v Goodfellow, applied to the specific will and the specific testator. The safest approach is to address each of the four limbs explicitly, ground the opinion in evidence, and explain how any impairment does or does not affect the disposition. Asserting a diagnosis or applying the wrong legal test is the most common reason a report fails under scrutiny.
Frequently asked questions
Does dementia mean a person cannot make a will?
No. Dementia does not itself defeat testamentary capacity. The question is whether, at the time of execution, the person meets the Banks v Goodfellow limbs, which many people with dementia do, particularly earlier in the condition and with good timing and support. A contemporaneous assessment is the protection.
Is the Banks v Goodfellow test still good law?
Yes. In Hughes v Pritchard the Court of Appeal confirmed that Banks v Goodfellow remains the test for testamentary capacity, operating alongside rather than replaced by the Mental Capacity Act 2005.
When should a formal testamentary assessment be obtained?
Before execution, wherever a diagnosis, significant changes from earlier wills, family conflict or advanced age raises doubt. The golden rule points to contemporaneous professional evidence precisely because retrospective reconstruction is harder and riskier.
Related mental capacity assessment pages
These internal links help readers move from this guide to the most relevant Nellie Supports service page, assessment option or legal framework page.
Need testamentary capacity evidenced against Banks v Goodfellow?
Nellie Supports completes testamentary capacity assessments across England and Wales, prospective, contemporaneous and retrospective, through a permanent employed team with every report peer reviewed before delivery. Call 0333 987 5118 or visit the testamentary capacity assessment service page.