The recent case of James v James [2018] EWHC 43 (Ch) looks at the issue of testamentary capacity following the death of a testator who made a Will leaving his estate to his daughters and wife but excluded his son to whom he had transferred land and his business to during his lifetime.

The son brought several claims against his father’s estate including a claim that his father lacked mental capacity. It is well known that the testamentary capacity is set out in the 1870 case of Banks V Goodfellow however the more recent test set out in the Mental Capacity Act 2005 has caused some confusion.

The test set out in Banks v Goodfellow (1870) LR 5 QB is as follows:-

“It is essential…that a testator shall understand the nature of his 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, avert 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 which, if his mind had been sound, would not have been made.”

The test set out in the Mental Capacity Act 2005 is a two stage test as follows:-

(1) Is there an impairment of, or disturbance in, the functioning of the person’s mind or brain?

(2) If so, is the impairment or disturbance sufficient that the person lacks the capacity to make that decision?


A person can only be deemed unable to make a decision if he/she is unable to:

  • Understand the information relevant to the decision.
  • Retain the information long enough to enable the making of a decision.
  • Use or weigh that information as part of the process of making the decision.
  • Communicate the decisions in any way.

The judge in this case confirmed after referring to other cases looking at the question of what the appropriate test for mental capacity is, confirmed that the test in Banks v Goodfellow is still applicable and that if Parliament had wanted the Mental Capacity Act 2005 to override Banks v Goodfellow, it would have made it clear. In addition, complying with the “Golden Rule” is still good practice in the event of any elderly testator having suffered a serious illness. Medical evidence should be sought or the medical practitioner should act as witness to the Will.

For more information about Wills or challenging a Will, please visit our Contesting a will section or contact us by calling 0161 941 4000. Alternatively you can email

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