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Testamentary Capacity – A New Standard?

In the recent UK decision of James v James,  the Court ultimately concluded that the criteria set out in Banks v Goodfellow is still the correct “test” for determining requisite testamentary capacity: “More recently the Mental Capacity Act 2005  contents  has made fresh provision for the law of mental capacity in certain situations. What is unfortunately not made expressly clear in that legislation is the extent to which this fresh provision affects the test for capacity to make a Will when that question is being judged retrospectively (typically, though not necessarily, post mortem).”

The England and Wales Law Commission has recommended adopting the test set out in the MCA, 2005 for establishing testamentary capacity. The MCA test is described in the within James decision as linked and sets out a single test of capacity for a broad range of financial, healthcare and welfare decisions.

Modern Interpretation of Banks v Goodfellow

In a recent article by Canadians Dr. Kenneth Shulman, Susan Himel, Ian Hull, Carmelle Peisah, & Courtney Barnes called – “Banks v. Goodfellow 1870: Time to Update the Test for Testamentary Capacity” (2017), Can. Bar Rev, the authors propose an updated and modern interpretation of the Banks criteria, based largely on clinical experience. The updated proposal requires that the testator be:

  1. Capable of understanding the act of making a will and its effects;
  2. Capable of understanding the nature and extent of their property relevant to the disposition;
  3. Capable of evaluating the claims of those who might be expected to benefit from the estate, and able to demonstrate an appreciation of the nature of any significant conflict and or complexity in the context of the testator’s life situation;
  4. Capable of communicating a clear, consistent rationale for the distribution of their property, especially if there has been a significant departure form previously expressed wishes or prior wills; and
  5. Free of a mental disorder, including delusions, that influences the distribution of the estate.

Like the proposed Canadian amendments to the Banks criteria, the empowering principles of the MCA 2005 appear potentially less discriminatory than the Banks language from 1870, and avoids assumptions of incapacity based on diagnosis alone and requires a functional assessment of whether or not someone can actually make the specific decision at hand.


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