A Modern Test for Testamentary Capacity:
Testamentary capacity, the mental ability to make a valid Will, is one of the most fundamental concepts in Wills law. For over 150 years, the standard test has been the common law formulation from Banks v Goodfellow (1870) LR 5 QB 549. In its recent Final Report on Wills, the Law Commission has proposed that this long-standing common law test should be replaced by a statutory test based on the Mental Capacity Act 2005 (MCA 2005). The goal is to align Wills law with modern understandings of mental capacity and bring greater clarity, fairness, and consistency to a critical area of law.
The Current Law: Banks v Goodfellow and a Common Law Legacy:
The test in Banks v Goodfellow sets out that, in order to have capacity to make a Will, the testator must:
- Understand the nature of the act and its effects,
- Understand the extent of the property being disposed of,
- Understand and appreciate the claims to which they ought to give effect,
- Not be affected by any “disorder of the mind” that “poisons his affections, perverts his sense of right, or prevents the exercise of his natural faculties.”
This test is judge made law from the Victorian era and remains binding today. It has been endorsed in numerous modern cases, including Hoff v Atherton [2004] EWCA Civ 1554 and Key v Key [2010] EWCA 408 (Ch), and continues to be applied even though the Mental Capacity Act 2005 now governs most other decisions about capacity in England and Wales.
Despite its longevity, Banks v Goodfellow has significant drawbacks. As the Law Commission highlights, it pre-dates modern psychiatry, makes no reference to fluctuating or supported capacity, and sits awkwardly alongside the MCA 2005, creating a confusing dual regime. For example, a person might be found to lack capacity under the MCA for financial decisions yet still be deemed capable of making a will under Banks v Goodfellow. This inconsistency is not just academic, it creates a real-world uncertainty.
Additionally, the fourth limb if the test the (“disorder of the mind”) has proved particularly problematic in modern cases involving dementia, delusions, or undue influence. In Walker v Badmin [2014] EWHC 71 (Ch), for instance, the court had to wrestle with whether paranoid delusions invalidated the testator’s ability to rationally consider the claims of his children. The law is patch and unpredictable, something the Law Commission aims to change.
The Proposal: Replacing Banks v Goodfellow with the MCA 2005:
The Law Commission recommends that testamentary capacity be governed by the statutory principles and framework of the MCA 2005, which already applied to decisions regarding property, finance, health, and welfare. The central test is found in sections 1-3 of the MCA, with a clear, functional approach:
- A person is assumed to have capacity unless proven otherwise.
- A person lacks capacity if, at the material time, they are unable to make a decision because of an impairment or disturbance in the functioning of the mind or brain.
- The ability to make a decision includes understanding, retaining, using, or weighing relevant information, and communicating the decision.
Applying the MCA test to Wills would bring the law into line with every other major area of mental capacity law and would also reflect best practice already being used by many medical professionals and solicitors when assessing capacity for Will-making.
Importantly, the Commission does not recommend a wholesale lift and shift. Instead, the draft Wills Bill provides some tailored provisions. For example, it clarifies that the decision in question is making or revoking of a Will, and the relevant information includes understanding the nature of making a Will, the extent of the estate and who might have a claim (mirroring Banks v Goodfellow substance). However, the test would now be underpinned by the MCA’s framework and principles, including its presumption of capacity and emphasis on supporting decision making.
Why Change the Test:
The Commission outlines several compelling reasons for the change. First and foremost is coherence and consistency. It is illogical for Wills to be governed by a different test than other decisions about finances or healthcare.
Second, the MCA 2005 has been carefully designed to reflect modern understanding of mental capacity, including the fact that capacity may be decision-specific, time-specific, and may require support. The Banks v Goodfellow test, by contrast, can appear rigid and ill-suited to fluctuating conditions like early-stage dementia or bipolar.
Third, adopting the MCA standard is likely to make advice more accessible and consistent, particularly where medical professionals are asked to assess capacity. Most doctors are already trained in the MCA; very few are familiar with the subtleties of Banks v Goodfellow. As a result, capacity assessments and court judgements may become more reliable and straightforward.
Finally, reform would reduce litigation risk and confusion. Under the current dual system, it is possible for two expert witnesses to apply different standards, one Banks v Goodfellow, the other MCA, leading to contested Wills and increased emotional and financial costs for families.
How Would This Work in Practice?
The proposed Wills Bill, included in Volume II of the Law Commission’s Final Report, sets out the new test in statutory form. Clause 23(3) of the Bill states that:
“In this Act, references to a person who has, or who lacks, capacity are to be read in accordance with the Mental Capacity Act 2005.”
The modification clarifies that applying the MCA to Wills means interpreting “capacity” in line with section 1-3 of the MCA but tailored to the context of making or revoking a Will. This entails that the assessment will be based on understanding the nature of a Will, the extent of the estate and the people with legitimate claims.
From this, it codifies the shift rather than relying on the archaic case law test of Banks v Goodfellow, introducing that the law will use the moder, functional MCA framework. It further embeds presumptions and protections that are core to the MCA, bringing coats of comfort and clarity that Banks lacks.
Potential Challenges:
The Commission acknowledges that there will be transitional issues. Case law under Banks v Goodfellow is vast, and many practitioners are steeped in its language and precedents. The move to a statutory test may require updated guidance, judicial interpretation, and professional training. There is also concern that courts may apply MCA based concepts to rigidly, without allowing for the nuances of testamentary decision making.
However, the Commission is confident that the legal system can adapt, and notes that the MCA test is already being used in practise by many people, including doctors, when assessing for mantal capacity to make a Will. Sever reported cases already reference the MCA alongside Banks, suggesting the transition would not be abrupt or disruptive.
Final Thoughts: Time for a Thoughtful Modernisation:
The Banks v Goodfellow test has served the law well for over 150 years, but the time has come to replace it with a test that reflects contemporary medical understanding, consistency, and respect for individual autonomy. By bringing testamentary capacity under the umbrella of the Mental Capacity Act 2005, the Law Commission’s proposals offer a more coherent, compassionate, and modern framework.
This is not change for its own sake. It is a targeted reform that preserves the core protections of the law while removing outdated complexities, ensuring that people are neither unfairly deprived of the ability to make a Will, nor exploited due to unclear standards. As society ages and cases of cognitive impairment become more common, this reform could not be more appropriate at this time.
