Banks v Goodfellow – the Fourth Limb

At common law there are at least three different types of capacity best illustrated in the context of making a will:

legal capacity – being 18 years or older (although there are exceptions).

physical capacity- the testator must sign the will in the presence of two competent witnesses (although, there are exceptions.)and

mental capacity – known as ‘testamentary capacity’.

Mental Capacity

The Marquess of Winchester’s Case in 1572 held that a valid will can only be made by a person of sound mind; however, the test for mental capacity for a will was settled in Banks v Goodfellow in 1870 where a testator must

understand the nature of making a Will and its effects;

understand the extent of the property of which he is disposing;

be able to comprehend and appreciate the claims to which they ought to give effect; and

that no disorder of mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusions shall influence his will in disposing his property and bring about a disposal of it which, if the mind had been sound, would not have been made

The fourth limb

Clitheroe v Bond [2021] EWHC 1102 (Ch) is a case about testamentary capacity that turns on the fourth limb of the test.

Following the death of one of her daughters the testatrix developed a severe grief disorder giving rise to several beliefs about her surviving daughter that turned the testatrix against her.

The testatrix believed the surviving daughter:

  • was a shopaholic and that she would fritter away any inheritance she received – there was little evidence to support this assertion; and
  • had lied about the sexual abuse she had suffered at the hands of her own father when she was young, even though there was overwhelming evidence that the abuse had taken place.

As a result of these beliefs, the testatrix in her penultimate will largely excluded her surviving daughter and completely cut her out of her final will, leaving the bulk of her estate to her son.

The decision

At first instance, the court held that the final two wills were invalid as the testatrix’s grief disorder had resulted in delusions against her surviving daughter.

The appeal

 On appeal the son argued that testamentary capacity should be determined by reference to the Mental Capacity Act 2005 (“The Act”) rather than the test in Banks v Goodfellow.

The High Court held that the trial had proceeded on the basis that both parties agreed that Banks v Goodfellow was the correct test of testamentary capacity. Further, there wasn’t a sufficiently good reason to depart from well-established case law; as the estate was worth £400000 it would be cost disproportionate and against the interests of justice to permit this ground of appeal.


The son argued the test for delusions was ‘misapplied’ at trial; additionally, the testamentary capacity test was either misapplied, and that findings on delusions were made that were not open to the court to make, or both.

Unlike the test for testamentary capacity, there are varying definitions for delusions in case law. The Court held that a false belief needs to be irrational and fixed in nature. To assess if someone was suffering from a ‘fixed’ delusion the Court was required to,

“take account of the nature of the belief, the circumstances in which it arose and whether there was an evidential basis for it, whether it was formed in the face of evidence to the contrary, the period of time for which it was held and whether it was the subject of any challenge.”

The High Court affirmed that there was clear evidence that the testatrix held a fixed belief, formed without evidential basis of the and maintained in the face of contrary evidence.

It was held that the parties should attempt to reach an agreement, via mediation or otherwise, to avoid a further hearing.

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