John Szepietowski discusses Banks v Goodfellow: The Common Law test for Testamentary Capacity

A means of challenging the validity of a Will is to claim that the person who gave instructions for the Will, the ‘testator’, did not have the required level of mental capacity, known as ‘testamentary capacity’. The relevant test for testamentary capacity was set out in the 1870 case, Banks v Goodfellow. This has remained the basis for assessing an individual’s testamentary capacity ever since.

More recently, the Mental Capacity Act 2005 was introduced, which dealt with various aspects of how mental capacity should impact decisions being made. Subsequently, there have been numerous cases that have considered whether the Mental Capacity Act 2005 should form the basis of testing an individual’s testamentary capacity, instead of Banks v Goodfellow, namely Walker v Badmin [2014] and James v James [2018].

This issue has now been considered in the High Court on appeal in the case of Clitheroe v bond [2021] EWHC 1102 (Ch), which confirmed that the test in Banks v Goodfellow was the correct test for testamentary capacity and that this test has not been displaced by the Mental Capacity Act 2005.

The test for testamentary capacity in Banks v Goodfellow [1870], is that the testator:

  1. Must appreciate the nature and consequences of making a Will;
  2. Must understand the extent of his or her property;
  3. Should consider any moral claims to their estate; and
  4. Must not be impacted by any disorder of mind or insane delusion.


In the appeal in Clitheroe v Bond, the Claimant tried to argue that the test in the Mental Capacity Act 2005 should be used when considering testamentary capacity. However, there are two key differences between the Banks v Goodfellow test and that in the Mental Capacity Act 2005:

  1. Burden of Proof: The Mental Capacity Act 2005 assumes that the person in question has the requisite capacity, unless proved otherwise, whereas Banks v Goodfellow only requires for the challenger to raise ‘real doubt’ regarding testamentary capacity, for the burden of proof to change to the individual trying to propound the Will, who must then prove that the testator had the necessary capacity.
  2. Testator’s understanding: The Mental Capacity Act 2005 requires the testator to be able to understand all the information relevant to the decision, whereas Banks v Goodfellow requires them to understand points 1-3 above.

The court confirmed that Banks v Goodfellow remains good law and should be followed when determining testamentary capacity.

If you desire further information in relation to any of the above, please contact John Szepietowski at Audley Chaucer Solicitors on 01372 303444 or email or visit our Linkedin page.


Joseph Beams

July 2021



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