Banks v Goodfellow (1870) LR 5 QB 549

Banks v Goodfellow is the seminal English authority on testamentary capacity, establishing the common law test that, over 150 years later, still governs whether a testator has sufficient mental capacity to make a valid will. The Court of Queen’s Bench, in a judgment delivered by Cockburn C.J., held that a person suffering from a mental illness or delusions is not automatically disqualified from making a valid will, provided that the delusions do not influence the particular testamentary disposition being made. The decision rejected the earlier, more restrictive approach in Waring v Waring (1848) 6 Moo. P.C. 341, which was premised on the “unity and indivisibility of the mind.”

Background and Facts

John Banks the elder was the son of a Keswick pencil manufacturer. He suffered from a serious mental illness which, in modern psychiatric terms, would likely be diagnosed as paranoid schizophrenia. He believed he was being pursued by various spirits, including that of a deceased man once known to him. He lived with his parents until their deaths (save for a “voluntary” period at Dunstan Asylum), after which he lodged in various houses. He died in 1865, aged 53, from “Epilepsy, Insanity and Coma.”

In 1863, John Banks the elder executed two wills within a month of each other. He instructed Mr Tolson, a grocer who collected rents on properties John had inherited, to bring his attorney, Mr Ansell, to his lodgings to take will instructions. Ansell’s usual practice was to execute a valid draft will at the initial meeting and later prepare an engrossed final version for execution — explaining the existence of two wills in quick succession. Both wills left the entirety of John’s estate to his niece, Margaret Banks Goodfellow. An earlier, apparently valid, 1838 will had left his estate to his (predeceasing) sister.

A puzzling feature of the case is that Margaret was John’s heir at law and would therefore have inherited on intestacy in any event. Cockburn C.J. accordingly described the will as “idle” (at 571). The explanation lies in the fact that Margaret died before reaching the age of majority, leaving no spouse or issue. Had she inherited by will, her estate would pass to her heirs (including her half-brother Edward Barron Goodfellow); on intestacy, John’s estate would instead devolve to his heirs — most prominently John Banks the younger, his nephew. The litigation was therefore, in substance, a contest not over the will itself but over who would ultimately benefit.

Procedural History

The will was challenged by John Banks the younger (the testator’s nephew, who stood to benefit on intestacy) and defended by Edward Barron Goodfellow (Margaret’s half-brother and her heir at law). The matter was tried before the Cumberland Spring Assizes in 1869. Brett J. directed the jury in terms that left open the possibility of a “lucid interval” – that is, that a person ordinarily afflicted with delusions could nevertheless have sufficient capacity at the moment of execution. The jury upheld the will. The claimant appealed to the Court of Queen’s Bench, which upheld both the direction and the verdict.

The Legal Issue

Whether a testator who suffers from delusions or mental illness can nevertheless possess the capacity required to make a valid will, and if so, what the correct test for testamentary capacity should be.

Judgment and the Test for Testamentary Capacity

Cockburn C.J., delivering the judgment of the Court, formulated what has become the classical statement of testamentary capacity. It is essential that a competent 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” (at 565).

Departure from Waring v Waring

The Court rejected the broad principle in Waring v Waring that unsoundness of mind in any respect precluded soundness in any other — a doctrine based on the supposed “unity and indivisibility of the mind.” Cockburn C.J. held this principle “unnecessarily wide.” Partial insanity was recognised: testamentary capacity could exist provided no delusion operated upon the particular disposition in question. The fact that delusions existed before and after the execution of the will no longer gave rise to an irrebuttable presumption that they had operated at the moment of execution.

Significance

The Banks v Goodfellow test remains the common law test for testamentary capacity in England and Wales and across much of the common law world. It has been applied in innumerable subsequent cases concerning the validity of wills made by testators with mental illness, dementia, or delusional beliefs.

Cockburn C.J. has been described as the “real hero” of the story. He had earlier been defence counsel in the celebrated criminal case of R v M'Naghten (1843) 10 Cl. & Fin. 200 — the foundational authority on the insanity defence — and his sophisticated grasp of “partial insanity” shaped the civil law on testamentary capacity just as decisively.

Although no costs orders from the original trial survive, a later judgment ((1871) LR 11 Eq 472) required John Banks the younger to pay the executor’s costs.

Commentary and Reform

The decision gives rise to a notable paradox: the more “rational” a will appears on its face, the greater the testator’s freedom to make what might otherwise seem an “irrational” disposition.

The Law Commission, in its Consultation Paper Making A Will (Consultation Paper 231, 2017), provisionally proposed that the Banks test be reformulated in legislation. Its concerns were not merely that the test is old or expressed in the language of Dickens’s time, but rather that:

• the test should be recast in simple, modern terms and aligned with current psychiatric thinking;
• a reformulation could accommodate the full range of factors that can affect capacity;
• four limbs should be expressly adopted (ending doubt over whether the test contains three or four limbs);
• the test should clarify that the question is whether the testator was able to understand the will, not whether he did;
• potentially offensive and value-laden language — “insane delusion,” “pervert,” “poison,” “sense of right” — should be removed.

As an alternative, the Commission suggested that the Banks test could be replaced entirely by extending the Mental Capacity Act 2005 to testamentary capacity, addressing the anomaly that different tests currently apply depending on whether capacity is assessed retrospectively (as in Banks) or prospectively (in the context of statutory wills).

Key Principles Established

1. Capacity is issue-specific and time-specific: a testator may lack general soundness of mind but nevertheless have capacity at the time of executing the will.
2. Lucid intervals are recognised: a person ordinarily suffering from delusions may make a valid will during a period free of their influence.
3. Delusions vitiate a will only if they influence the disposition: the mere existence of delusions unrelated to the testamentary act does not invalidate the will.
4. The testator must understand: (i) the nature and effect of the act, (ii) the extent of the property disposed of, and (iii) the claims of those who might expect to benefit.

Citation: Martyn Frost, A Victorian Tragedy: The extraordinary case of Banks v Goodfellow (London: Wildy, Simmonds & Hill Publishing, 2018).