Banks –v- Goodfellow is 150 years old (or young?)

 
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Testamentary capacity has a long and rich history. The first reported decision is Marquess of Winchester’s Case [1572] EngR 280. When Banks –v- Goodfellow (1870) LR 5 QB 549 was decided 300 years later, and 150 years ago on 6 July 2020, testamentary capacity had firmly developed three of the 4 limbs of the Banks –v- Goodfellow test, as it is known today. These are, in simple terms, knowledge of a will, assets and claimants. Banks –v- Goodfellow developed the fourth limb, whether knowledge of claimants was affected by delusions.

 That issue arose from the facts of Banks –v- Goodfellow because the testator, John Banks, thought that he was being persecuted by a person long since dead. He felt pursued and molested by evil spirits. Banks’ treating doctor told the jury that Banks was insane. Of course, at that time medicine was much more a matter of superstition than science. As said in Department of Health & Community Services v JWB & SMB (“Marion’s Case”) [1992] HCA 15; (1992) 175 CLR 218 in relation to this era: “medical men were of little account in the community”.

 Banks’ will was eminently rational. Banks had no spouse, child, surviving parent or nephew. He left his estate to his only niece, Margaret Goodfellow. The solicitor who visited Banks twice in the preparation of the will had no doubts about his mental prowess. Neither did the jury. The appeal to the Queens Bench Division (comprising Cockburn CJ – pictured, Blackburn, Mellor and Hannen JJ) failed.

 The re-formed test for testamentary capacity explained in Banks –v- Goodfellow “has been influenced by contemporary attitudes over the years, and as a result has been refined” (Perrins v Holland [2009] EWHC 1945 (Ch), [40]). It is therefore no sin to state the test in more modern and simpler language than found in Banks –v- Goodfellow. That occurred in Australia at least as early as 1898 when the test was rephrased in In the Will of Wilson [1898] VicLawRp 39; (1897) 23 VLR 197, which restatement was then quoted with approval in Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277, 283 (per Dixon J). In that decision another different formulation was offered by Rich ACJ (at 280).

 In Read v Carmody [1998] NSWCA 182 the test was re-stated again. Similarly in Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65. It has even been simply stated as: “[T]he Court needs to be satisfied that the testator had the capacity to remember, to reflect and to reason and, generally, that he did so in a rational way” (Myers J, Australian Bar Gazette 1967 Vol 2,3, and adopted in many NSW decisions in the last decade since King v Hudson [2009] NSWSC 1013, [50]- [51]). It was therefore not new nor surprising that the Court of Appeal in Mekhail –v- Hana [2019] NSWCA 197, [164] wrote against “adhering to the language of testamentary capacity as stated in Banks v Goodfellow as if that were a legislative text”.

Banks –v- Goodfellow is not now relevant because it precisely states legal scripture, but because it first re-stated a legal principle of continued application. And it is relevant because it illustrates the different thinking used by courts applying ecclesiastical law. Think of defamation law, and the distinction between immoveables and moveables in private international law, as other examples. Also, in the ecclesiastical courts there was, at one time, a third, or different, standard of proof (see Briginshaw v Briginshaw [1938] HCA 34). These laws are conceptually different to laws developed by common law courts and chancery. So are the ecclesiastical ideas of testamentary capacity – the test and presumptions, knowledge and approval, testamentary undue influence and testamentary fraud different to mental capacity – the test and presumption, equitable undue influence and fraud at common law and in equity.

 Whilst tinkering with the test to determine a free and capable testator (as happened with Banks –v- Goodfellow) will continue over time, to ensure coherence in the law, it is useful to remember that any wholesale changes will need to be considered broadly and not undertaken piecemeal.

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