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What Can we Learn from Banks v Goodfellow?

In our Contested Probate department, we often come across a common area of contention which is the test for capacity when drafting a will.


The legal test for testing ones testamentary capacity is set out in the case of Banks v Goodfellow [1870]. In this case, John Banks owned an estate of 15 cottages in the Lake District. Unfortunately, Mr Banks suffered from delusions and epilepsy and had spent time in an asylum. Most notably, Mr Banks believed he was being visited by devils and evil spirits and was being molested by a local man, Mr Alexander, even since Mr Alexander’s death Mr Banks still believed this.


On 2 December 1863 Mr Banks made a new will leaving his estate to his niece. He sadly passed away two yeas later. Thereafter, another two years passed and Mr Bank’s niece also passed away. Her inheritance (inclusive of Mr Bank’s estate) passed to her half-brother who was no relative of Mr Banks. The son of Mr Bank’s half-brother contested the will to have his will set aside due to lack of capacity. However, it was ruled that these delusions posed no bearing on the content of his will and therefor he was deemed to have sufficient mental capacity and the will still stood.


One element of the test that has derived from the will is the Testator must not be suffering from ‘any insane delusions’ or ‘disorder of the mind’. This test from 1870 is still upheld today as evidenced in the case of ‘Re Clitheroe’ in 2021.

Furthermore, the test set out in Banks v Goodfellow states the Testator has testamentary capacity if they:


  1. Understand the nature and of the will and its effect
  2. Have some understanding of the extent of the property of which they are disposing under the will
  3. Are aware of the persons for whom they would usually be expected to provide
  4. Are free from any delusion of the mind that would affect their dispositions to those people


A competent Probate solicitor will carry out the Banks v Goodfellow test if they believe there is a possibility that the Testator may lack capacity.


If you require further information please contact our Litigation department on tallsopp@blackhams.com or telephone 0121 233 6912.

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