28 July 2015 marks the 150th anniversary of the death of Mr Banks

Year Published: 2015

The famous Mr Banks in the world of personal law is not the same as the one in Mary Poppins!

John Banks was a testator in the famous case of Banks v Goodfellow which sets out the legal test for mental capacity to make a will in England and Wales and is still good law today, 150 years later.

In this case, Mr Banks’ will was disputed as he had an irrational aversion towards a gentleman called Featherstone Alexander. Mr Banks was convinced that he was being harassed by this gentleman and that the gentleman was being assisted by devils and demons. This delusion had caused Mr Banks to have epileptic fits and on occasion was confined to his local lunatic asylum. However, it was held that this delusion did not poison his affections towards his niece whom he named as sole beneficiary and that his will was in fact valid.

The test for mental capacity to make a valid will in England and Wales is as follows, the testator (the person making the will) must:

  1. Understand the nature of the act and its effects;
  2. Understand the extent of the property which s/he is disposing;
  3. Understand and appreciate the claims to which he ought to give effect;
  4. With a view to point three above not have a disorder of the mind which shall poison his affections against a person and influence the disposal of this property which s/he would have made if s/he had been of sound mind.

Although the Mental Capacity Act 2005 was introduced relatively recently setting out the test for mental capacity to conduct a transaction or to make a Lasting Power of Attorney, the court has held that the test for mental capacity to make a will is still governed by this 150 year old case and that the test for mental capacity is a legal test rather than a medical one.

For more information about wills and mental capacity issues, please contact our Wills & Wealth Planning team on 0161 475 7648.

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