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Challenging a Will.

In case of James v James the Court confirmed that when assessing whether a person has the necessary mental capacity to make a Will, the criteria set out in the old case of Banks v Goodfellow (1870) must still be applied, despite the fact that since that case was decided legislation has been enacted that deals with questions of capacity.


The test in Banks v Goodfellow requires that the person making the Will must:


· understand the nature of the act [making the Will] 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,

· no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties.


The level of understanding required will often vary according to the complexity the Will, the extent of the testator’s assets and the number of potential claims that may be made on the testator/testator’s estate.

To accompany Banks v Goodfellow, the Mental Capacity Act 2005 sets out a new definition of mental capacity that applies in certain situations and this gives rise to the suggestion that the definition in the Mental Capacity Act 2005 is simply a modern day restatement of Banks v Goodfellow and the Act should therefore be applied and ultimately, the provisions of the Act will replace the test in Banks.

However, the decision in James v James has confirmed that this approach is incorrect.

In James v James, the Court confirmed that the test in Banks v Goodfellow has not only survived the Mental Capacity Act but when judging whether someone had the capacity to make a Will it is the only test that should be applied.

The Court based its decision on the earlier case of Re Walker (Deceased) (2014), stating that although there is an overlap between the two tests often either test would produce the same result, this would not always be the case, particularly when factors such as the differences in the burden of proof, and the presumption of capacity under Section 1(2) of the Mental Capacity Act were taken into account.

Also in Re Walker, the Court examined the purpose of the Mental Capacity Act as set out in Sections 1(1) and 2(1), and concluded that this was to define when a living person could make decisions for themselves. The Court considered this an entirely different task to evaluating retrospectively whether a deceased person had mental capacity at the time they made their Will and that consequently such an evaluation does not fall within the scope of the Mental Capacity Act.

Further as the test in Banks v Goodfellow was founded on principles that go back over almost three centuries and itself was a century and a half old, it was safe to assume that Parliament did not intend to overrule such a well-established rule of the common law when passing the Mental Capacity Act, in the absence of clear words to that end.

In the James v James case, the Deceased satisfied the first two limbs of the Banks v Goodfellow test in that – he appreciated he was making a will, and he was aware of the extent of the estate that he had to dispose of. Further, at the time of executing his will, the Deceased had capacity to appreciate the claims made by others on his estate, satisfying the third limb of the Banks test.

He therefore had the necessary capacity to make a valid Will.

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