The traditional legal tests for the testamentary capacity of a willmaker can be traced back to the 1870 English case of Banks v Goodfellow.1 In the ever-evolving landscape of inheritance law, few cases have had the enduring impact of Banks v Goodfellow. Over 150 years later, this seminal UK decision continues to shape how we assess testamentary capacity. But with the UK Law Commission's 2025 Report No. 419 proposing sweeping reforms, is it time to retire the Victorian test?
Let's explore what Banks v Goodfellow still teaches us and what the future may hold.
Life in 1870: a different world
To appreciate the context of Banks v Goodfellow, consider life in 1870:
- Life expectancy in the UK was around 40 years.
- Travel was by horse-drawn carriage or steam train; the London Underground had just opened its first line.
- Mental health was poorly understood, and institutionalisation was common.
In this world, the law sought to protect the vulnerable while respecting autonomy. But society has changed dramatically since 1870.
The case that set the standard
In Banks v Goodfellow, the testator, John Banks, suffered from delusions believing he was persecuted by a man long dead.2 Despite this, the court upheld his Will, finding that his delusions did not affect his understanding of the will's nature, his property, or the claims of potential beneficiaries.
The case established a four-part test for testamentary capacity:
- Understanding the nature and effect of making a will.
- Knowing the extent of one's property.
- Appreciating the claims of those who might expect to benefit.
- Ensuring that no mental disorder distorts judgment or influences the will.
Discussions continue as to how to ensure that traditional legal doctrine remains relevant in Australian society today with an aging population that has seen an increase in the number of people with age-related illnesses affecting capacity such as dementia.3 An issue is how to undertake the more complicated assessment of testamentary capacity today to satisfy the traditional legal tests. Relevant factors that need to be considered include a person's overall mental health and its impact on the more limited testamentary capacity legal tests, modern property, the need for an interdisciplinary approach of both legal and medical professionals in assessments and the costs of a more involved assessment process.4 A further doctrinal issue is whether the traditional testamentary capacity doctrine discriminates against the human rights of people with dementia, mental health or other cognitive impairments by prohibiting or restricting their right to make a will and should therefore be facilitated by supported decision-making or abolished.5
Reform on the horizon: Law Commission Report No. 419
The UK Law Commission's 2025 report proposes aligning the test for testamentary capacity with the Mental Capacity Act 2005, which defines capacity more broadly and functionally. Key recommendations include:
- Replacing Banks v Goodfellow with a statutory test based on the Mental Capacity Act.
- Recognising electronic wills, with safeguards.
- Abolishing automatic revocation of wills upon marriage, to prevent predatory marriages.
- Allowing courts to validate informal wills where the testator's intent is clear.
These reforms aim to modernise the law, protect vulnerable individuals, and better reflect contemporary values and technology.
Why this matters for Australia
While these reforms are UK specific, they resonate strongly in Australia, where similar issues arise. Trustee companies, legal professionals, accountants and financial advisors should watch these developments closely. They may influence future reforms here and provide valuable insights into best practices for assessing capacity and drafting robust wills.
Final thoughts
Banks v Goodfellow reminds us that testamentary
capacity is not about perfection - it's about understanding,
intention, and fairness. As we move into an era of digital
documents and longer lifespans, the challenge is to preserve those
principles while embracing modern realities.
If you'd like to discuss how these developments might affect
your clients or practice, our Private Clients team is here to
help.
Footnotes
1 Banks v Goodfellow (1870) LR 5 QB
549.
2 Kelly Purser, 'Assessing Testamentary Capacity in
the 21st Century: Is Banks v Goodfellow Still
Relevant?' (2015) 38(3) UNSW Law Journal 854,
854–79.
3 Ibid 854–5.
4 Ibid 863–79.
5 Terry Carney, 'Supported Decision-Making for
People with Cognitive Impairments: An Australian Perspective?'
(2015) 4(1) Laws 37, 37–59.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
