09/05/2026
Banks v Goodfellow is an 1870 case that has stood the test of time regarding whether someone has capacity when making a Will.
There are four main criteria for testing capacity:
1. Understanding the Nature and Effect of a Will: The Testator must comprehend that they are making a Will and understand its legal consequences, such as the distribution of their property upon death.
2. Understanding the Extent of the Property: The Testator must have a general understanding of the size and nature of the estate they are disposing of (since not everything is dealt with solely by a Will).
3. Awareness of Potential Beneficiaries: The Testator must be able to comprehend and appreciate the claims of those who might reasonably expect to benefit from their estate (for example moral and legal obligations by dependents like family members, friends, ex-partners and the like).
4. Absence of adverse affectation of the mind: The Testator must not be suffering from a "disorder of the mind" or "insane delusion" that would poison their affections, pervert their sense of right, or prevent the exercise of their natural faculties in making the Will (of which there are presence vs intoxication arguments).
If you need help making or challenging a Will made under less than ideal circumstances, contact us today to discuss your options:
- [email protected]
- www.ashbyestatelaw.com.au
