WillsCase Review: Banks v Goodfellow

There are a number of important cases that we will writers must have an understanding of. Not all law is statute based and many of these cases form the basis of the law that applies to will writing and succession.

This article will cover an overview of the facts and decision of Banks v Goodfellow (1870) LR 5 QB 549.


The case concerned the will of John Banks, who owned a considerable estate of 15 Cottages in the Lake District. During his lifetime, Mr Banks suffered from delusions and epilepsy and had spent some time in a lunatic asylum. In particular, Mr Banks believed that he was frequently visited by devils or evil spirits and believed that he was being pursued and molested by a Mr Alexander and even the death of Mr Alexander did not stop Mr Banks from believing this.

On 2 December 1863, Mr Banks made a new will leaving his estate to his niece. He died two years later. His niece died two years after that and her estate, including her inheritance from Mr Banks, passed to her half brother who was not a relative of Mr Banks.

The son of Mr Bank’s half brother brought proceedings to have Mr Banks’ will set aside on the grounds of lack of capacity.


The proceedings failed and it was held that Mr Banks was mentally capable of making his will. Whilst it was clear that Mr Banks suffered from delusions, those delusions had no impact on the gifts he made in his will. The judgment of Cockburn CJ gave what is now the test for testamentary capacity:

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 on disposing of his property, and bring about a disposal of it which would not have been made otherwise

This can be broken down into four different elements:

  1. The testator understands the nature of making a will and its effects – this being that the testator must know that he is making a Will to dispose of his assets AFTER he has died. In other words, the testator understands that the Will is to come into effect on their death and not before.
  2. The testator understands the extent of the property of which they are disposing – the testator does not need to know the exact value of everything they own but must know the extent of their wealth. For example, be able to give approximate figures of the assets which they own.
  3. The testator is able to comprehend and appreciate the claims to which they ought to give effect – the testator must know who might have first claim on their property. An example could be that the testator is married and therefore the spouse would have claim upon the estate
  4. The testator has no disorder of the mind that perverts their sense of right or prevents the exercise of their natural faculties in disposing of their property by will.

Chris Rattigan-Smith