Testamentary capacity: Banks v Goodfellow, not the Mental Capacity Act 2005, as the test applied

The courts continue to determine testamentary capacity by the common law test in Banks v Goodfellow (1870) LR 5 QB 549. In Clitheroe v Bond [2021] EWHC 1102 (Ch), Falk J set out the test: the testator must understand the nature of the act and its effects, understand the extent of the property being disposed of, be able to comprehend and appreciate the claims to which they ought to give effect, and no disorder of the mind may poison their affections, pervert their sense of right or prevent the exercise of their natural faculties. She stated that, had the point been open on appeal, she would have concluded that the Banks test continues to apply rather than the Mental Capacity Act 2005 test. A diagnosis of mild dementia is relevant evidence, but the question is whether Winifred met the Banks requirements when she made the will. Where there is real doubt about capacity, the burden of proof ultimately lies on the person propounding the will (here Precious).

Why B is wrong: The courts continue to apply Banks v Goodfellow. In Clitheroe v Bond the High Court said (obiter, having refused to let the point be argued on appeal) that it would have held that Banks, not the MCA 2005 test, still applies to testamentary capacity.

Why C is wrong: A diagnosis is evidence only; a person with mild dementia may still satisfy the Banks test at the time the will is made.

Why D is wrong: A testator with capacity may make an unwise or unfair will; the test concerns understanding, not the reasonableness of the gifts.

Why E is wrong: This is a civil question decided on the balance of probabilities, and the legal burden ultimately rests on the propounder of the will, not on Lewis to a criminal standard.