Last year, an English High Court of Justice appeal of the determination of a will challenge raised the question of whether Banks v Goodfellow (1870), LR 5 QB 549, the 1870 decision of the English High Court, Queen’s Bench Division, remained the leading authority on the standard of testamentary capacity, or whether its relevance had been limited by the enactment of the Mental Capacity Act in 2005.
The following Banks v Goodfellow criteria with respect to testamentary capacity are still often cited in the case law in both the United Kingdom and Canada: “It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”
In Re Clitheroe, [2021] EWHC 1102 (Ch), the appellant argued that the wrong approach, in following Banks v Goodfellow, was applied in determining whether the testator had capacity to make her will and that the approach under the Mental Capacity Act instead should have been applied. The Court reviewed the Banks v Goodfellow criteria, the provisions of the Mental Capacity Act, and English case law since its enactment considering whether it affects the standard for testamentary capacity. The legislation was considered to apply to capacity standards in respect of living people and does not preclude the existence of other capacity standards beyond its terms. As a result, the Banks v Goodfellow approach to testamentary capacity was correct: “The Banks test, which as the Court of Appeal…noted…has withstood the test of time, has not been swept away by the [Mental Capacity Act].”
Like the United Kingdom, Ontario has legislation that addresses certain standards of mental capacity. Our Substitute Decisions Act, 1992, provides guidance as to considerations and processes that apply when capacity is in question, as well as the capacity standards applicable to the making of a valid power of attorney, the management of property, and making personal care decisions. However, like in England, this legislation does not appear to have displaced common law standards of testamentary capacity.
While some experts, including our own Ian Hull, have suggested that it may be time to reconsider the standard for testamentary capacity over 150 years since Banks v Goodfellow was decided, and legislation like the Substitute Decisions Act might provide helpful guidance when considering capacity standards, the old English case remains the leading authority on this issue for now.
Thank you for reading,
Nick Esterbauer
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