A recent High Court interim judgment appears to pour cold water on the current view that the correct test for testamentary capacity in the 21st Century should be the Mental Capacity Act 2005 (MCA 2005) and not the 1870 case of Banks v Goodfellow.

The case

In Clitheroe v Bond, 2020 EWHC 1185 Ch, the case involved the Wills (one made in 2010 and another in 2013) of Mrs Joan Clitheroe, who died in 2017 leaving almost the entirety of her estate to her son, John, thereby cutting her daughter Susan Bond out of the inheritance.

Susan disputed the Wills arguing that her mother was having insane delusions. John defended the Wills. In the first instance, the court ruled on the basis of the test for mental capacity as proved in Banks v Goodfellow and overturned the Wills so that Susan would receive half the estate.

John appealed and his disputed Wills solicitors argued that the correct test should be the MCA 2005 as the prevalence of senile dementia has increased significantly and our understanding of the condition makes the Banks v Goodfellow test outdated.

MCA 2005 states that a person must be assumed to have mental capacity unless the lack thereof has been proven and the fact that a person made an unwise decision is not proof of mental incapacity.

It was also argued that the judge in the first instance had misapplied the Banks v Goodfellow delusions test.

Banks v Goodfellow

While the law has developed significantly since the late 19th Century the principles of Banks v Goodfellow as the test for determining testamentary capacity have changed little.

The test holds that a person making a Will must:

• understand the nature of the will and its effects
• understand the extent of the property of which they are disposing in the Will
• be able to comprehend and appreciate the claims of those who would typically expect to benefit under the Will (even if they choose not to benefit those people)
• must not have a disorder of the mind which causes them to reason not to benefit to those people or prevents the exercise of their natural faculties in disposing of their property by way of a Will

In Banks v Goodfellow, the testator had previously been admitted to a ‘lunatic asylum’ and at the time he made his Will was experiencing certain delusions. However, the delusions could not be connected with any dispositions in the Will and it was found that the testator had still been capable of having the required knowledge and appreciation (the testamentary capacity) of the facts in relation to the drafting of his Will.

Clitheroe v Bond – the question of delusion

In the 2021 appeal claim, as well as arguing for the application of MCA 2005 as the test for mental capacity, John Clitheroe’s solicitors argued that the judge in the first instance had misapplied the Banks v Goodfellow delusions test in that if “no insane delusion shall influence [the testator’s] will in disposing of [their] property and bring about a disposal of it which, if the mind had been sound, would not have been made”.

In her High Court judgment, Falk J rejected the argument that MCA 2005 should have been used as the appropriate test for mental capacity and on the point of delusions she said:

“In order to establish whether a delusion exists, the relevant false belief must be irrational and fixed in nature. It not an essential part of the test that it is demonstrated that it would have been impossible to reason the relevant individual out of the belief if the requisite fixed nature can be demonstrated in another way, for example by showing that the belief was formed and maintained in the face of clear evidence to the contrary of which the individual was aware and would not have forgotten.”

The case has been adjourned so that the siblings disputing the Wills can attempt to reach an agreement.