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  • Writer's pictureAustin & Carnley Solicitors

Banking on Goodfellow

In 2022, 26% percent of inheritance disputes arose because the claimant was not happy with the inheritance they received.[1] This could be due to the ambiguity when regarding an individual’s mental capacity when making a Will.  

Banks v Goodfellow is still considered to be substantial law however when the Law Commission of England and Wales (‘’the Commission’’) published the consultation on the potential reform of the UK Wills Act 1837, the view on Banks v Goodfellow[2] has since shifted. Arguments for moving away from Banks advocate that our society’s understanding of mental capacity has progressed from the Victorian era. The current law under Banks v Goodfellow in brief sets out that an individual must understand:  the nature of the act of making a Will, the extent of the property which is subject to the Will and the individual must comprehend and appreciate any claims that might arise should be no delusion affecting the mind.

The Commission states that ‘’Conditions which affect decision-making like dementia are not properly accounted for in the current law’’ and that the law should include a new mental capacity test that considers our modern perception of mental capacity.

Counter arguments that contend with the Commission state that the law has been able to react to questions of testamentary capacity without the need for total reform. For example, in recent light Clitheroe v Bond [3] developed our understanding of the fourth component (insane of delusion) of the Banks v Goodfellow test. Justice Falk in Clitheroe expressed that Banks regarding testamentary capacity remains the correct test and has ‘withstood the test of time.’

In Baker v Hewston, Judge Trindal declared that the Mental Capacity Act 2005 test should also be used as a reference to check that the testator has mental capacity. The Mental Capacity Act 2005 is designed to assist people in making intervivos decisions on their behalf and in their best interests if they are unable to make those decisions themselves.

While reform of the legislation surrounding Will making could deter coercive behaviour and was stressed in the Commissioners Report, the doctrine of precedent has kept pace with changing times. Since the Commissioners Report was published, new cases have developed our understanding of testamentary capacity together with the role of MCA 2005.

If you, or someone you know, needs to make a Will, and are concerned about issues of mental capacity. Give us a call, and someone from our experienced Private Client team will be delighted to help and advise you with your concerns.



[2]  [1871] 3 WLUK 52


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