All About Estates

The 1870 Test for Testamentary Capacity: time for an update

The leading case on testamentary capacity for almost 150 years has been that of Banks v Goodfellow – a judgment written on appeal by Chief Justice Cockburn of the English High Court in 1870.  The four broad criteria that emerged from his judgment have formed the basis of virtually every Will challenge case since that time – this, despite the fact that a few things have changed since 1870.  This includes the criterion related to knowledge of assets and property that states in Old English: “Shall understand the extent of the property of which he is disposing”. This has been interpreted to mean in a “general way” – although this leaves much room (perhaps too much) for interpretation. Given the principle that capacity is not only task-specific but situation-specific, a simple addition to the criterion may help to provide a more consistent and appropriate approach to this component of the test.

Consider the case of a simple Will in an uncomplicated situation where a testator wishes to divide their estate equally between two loving children.  Surely, the knowledge of the nature and extent of assets should not be a major concern in the decision about testamentary capacity.  On the other hand, a large complicated estate in a conflictual family environment demands a higher threshold of knowledge and appreciation regarding the nature and extent of one’s assets and their distribution.  If a testator is bequeathing a house to one child and a corporate asset to another, the value of those respective entities is important and must to be tied to the wishes and values of the testator with respect to their beneficiaries.  A simple addition to the Banks v Goodfellow test on this point might be: “Understand the nature and extent of the property relevant to the disposition.”  This is only one element of Banks v Goodfellow that could benefit from a refresher after almost 150 years. Next blog explores the power of a comma in interpreting the mental illness criterion of the B v G test.

About Dr. Ken Shulman
Dr. Shulman graduated from the Faculty of Medicine, University of Toronto in 1973 and did postgraduate training in Psychiatry at the University of Toronto. He then went on to do specialty training in Geriatric Psychiatry in London, England. Since 1978, he has been based at Sunnybrook Health Sciences Centre, University of Toronto. He is the inaugural recipient of the Richard Lewar Chair in Geriatric Psychiatry at Sunnybrook Health Sciences Centre, University of Toronto. Currently, he is the Chief of the Brain Sciences Program at Sunnybrook. Dr. Shulman has had a longstanding interest in the issue of testamentary capacity and vulnerability to undue influence and has been qualified as an expert witness in Estate matters in Ontario and Alberta. Together with colleagues he has published several papers in the area of testamentary capacity in international journals and is a frequent presenter at legal continuing education conferences on Estates and Trusts. Email: