Banks v. Goodfellow Explained — The Testamentary Capacity Test

Banks v. Goodfellow is the foundational case for testamentary capacity in Canadian law. Decided in England in 1870, the four-element test it articulated has been applied continuously in Canada for over 150 years and remains the governing standard.

The citation #

Banks v. Goodfellow (1870) LR 5 QB 549

Decided by the Court of Queen's Bench, England. Often abbreviated as "Banks v. Goodfellow" or simply "the Banks test."

The four-element test has been adopted across Canada and the Commonwealth and continues to govern testamentary capacity questions in Canadian provincial courts.

The facts (briefly) #

John Banks was a testator with a long history of mental illness, including delusions that specific people were persecuting him. He left his estate to his niece. The Will was challenged on the basis that his mental illness, and specifically his delusions, made him incapable of making a valid Will. The English court considered whether his specific delusions affected the disposition he made.

The court held that the Will was valid because the testator's delusions, while real, did not specifically influence the disposition. He made a rational Will to his niece despite suffering from delusions in other respects.

In articulating the test, Cockburn CJ wrote what became the canonical formulation for testamentary capacity.

The four-element test #

"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 in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made."

Modern paraphrase of the four elements:

Element 1 — Nature of the act #

The testator must understand they are making a Will — a document that will distribute their property after death. They must understand this is a serious legal act with consequences.

Practical test: Can the testator explain what a Will is and what it will do?

Element 2 — Extent of property #

The testator must have approximate awareness of what they own. Not exact dollar figures, but a general understanding of the scope and nature of their estate.

Practical test: Can the testator describe their main assets (home, bank accounts, investments, personal property) in general terms?

Element 3 — Moral claims #

The testator must understand who might reasonably expect to benefit from their estate — spouse, children, dependants, others with claims. The testator need not include them all, but they need to know they exist and what relationships exist.

Practical test: Can the testator name family members and describe relationships? Can they articulate why someone is or isn't included in the Will?

Element 4 — Free from insane delusion #

The testator must not be operating under a fixed false belief that specifically affects the disposition. This element is often forgotten but remains part of the full test.

Practical test: Are there delusions or fixed false beliefs that specifically influence the Will's provisions? A general mental illness doesn't disqualify; a specific delusion that specifically affects the disposition does.

The "insane delusion" element #

This element is often the trickiest and the most often overlooked.

What it means:

A delusion is a fixed false belief maintained against all evidence. For the Banks v. Goodfellow test, the delusion must:

• Be a fixed false belief
• Specifically influence the disposition
• Have brought about a disposition that "if the mind had been sound, would not have been made"

What it doesn't mean:

• General eccentricity doesn't disqualify
• Unusual views or preferences don't disqualify
• Mistaken beliefs that the testator could correct if shown evidence don't disqualify
• A delusion that doesn't specifically affect the disposition doesn't disqualify (as in Banks v. Goodfellow itself — the testator's delusions about specific persecutors didn't affect his disposition to his niece)

Examples that might qualify:

• Testator falsely believes a child is dead (and disinherits as a result)
• Testator falsely believes a spouse is unfaithful (and disinherits)
• Testator falsely believes a family member is plotting against them (and disinherits)

The delusion must be specifically connected to the disposition.

Canadian application #

The Banks v. Goodfellow test has been applied in Canada continuously since well into the 1800s. Modern Canadian appellate decisions consistently cite it. Provincial Wills Acts don't replace the common law test; they supplement it with execution requirements.

The test has been refined through Canadian case law in:

• How capacity is measured in cognitively impaired testators
• Application to specific medical conditions (dementia, Alzheimer's, mental illness)
• The role of medical capacity assessments
• The relationship between capacity and other doctrines (suspicious circumstances, undue influence)

Capacity is moment-specific #

A critical principle — capacity is assessed at the moment the Will was signed, not based on general state or later changes.

Implications:

• Person with declining cognition may have capacity on a clear day
• Person who later loses capacity may have made a valid Will earlier
• Person with intermittent lucidity (lucid intervals) can make valid Will during clear period

This is why medical assessment near the time of Will signing matters — it captures capacity at the relevant moment.

Sliding scale by complexity #

While the test elements are the same, the depth of demonstration required scales with the Will's complexity.

Simple Will (basic provisions, modest estate): Lower threshold of demonstration. Testator must show basic understanding.

Complex Will (substantial estate, trust structures, business succession): Higher threshold. Testator must demonstrate understanding of the more elaborate provisions.

Implication: A testator might have capacity for a simple Will but not for a complex one. Adapt the Will to the testator's actual capacity rather than insisting on complex provisions they may not understand.

Practical implications #

For testators (especially elderly):

• Make Wills while capacity is unquestionable
• Don't wait until cognitive decline is well underway
• Consider capacity assessment if any doubt
• Use clear, simple provisions appropriate to your capacity

For executors:

• Preserve records that document capacity at the time of signing
• Identify witnesses to the Will-making process
• Be prepared to demonstrate capacity if challenged

For challengers:

• Capacity challenges require evidence of impairment at the moment of signing
• Medical records, witness testimony, and contemporaneous documents are the typical evidence
• The four elements must each be addressed
• Time limits apply (provincial)

Modern debate #

There's ongoing academic discussion about whether Banks v. Goodfellow needs updating in light of modern medical understanding of cognitive decline and mental illness. Some jurisdictions have moved toward a more contemporary Mental Capacity Act framework. For Canadian Wills, however, Banks v. Goodfellow remains the operative standard.

What we focus on at It's Simple Will #

The Will Creator is designed for testators with clear capacity. For testators with potential capacity questions (recent diagnosis, advanced age with observed concerns, complex Wills), lawyer-assisted preparation with capacity assessment is appropriate.

Related guides #

• Mental capacity to make a Will
• Vout v Hay explained
• Suspicious circumstances and Wills
• Undue influence in Wills
• Wills for seniors Canada