BANKS V GOODFELLOW (1870): TIME TO UPDATE THE TEST FOR TESTAMENTARY CAPACITY

Abstract

The test for testamentary capacity as outlined in Banks v Goodfellow has endured for almost 150 years. The criteria have been clarified and focused throughout decades of jurisprudence, clinical experience and developments in neuroscience, but the wording of the test has remained unchanged. In this paper, we propose a modest update to the legal test for testamentary capacity, adopting a medico-legal approach that incorporates advances in both science and social contexts and modernizes the language used. The updated criteria will continue to facilitate flexible and reliable assessments of testamentary capacity.