Will-Making Capacity: Part Two of the Wills Series

8 August 2017

By Allison Curley

This series examines and compares recommendations made in several BCLI reports and those made by the Law Commission of England and Wales. To read the other posts in the series click here.

This weeks’ blog post, and the second instalment of the “Wills Series,” considers the ways in which BCLI has approached the issue of capacity in the context of will-making, and will compare this to how the Law Commission has proposed law reform in this area in its new Consultation Paper.

A person’s ability or inability to create a will is referred to as testamentary capacity. Testamentary capacity is an extremely important element of the law of wills, as the testator’s capacity to create their will is a requisite to the will being valid. A will cannot be valid if the testator does not meet the legal threshold to create the will in the first place.

British Columbia’s wills legislation, entitled the Wills, Estates and Succession Act, does not define capacity. However, section 36(1) of WESA states that, “[a] person who is 16 years of age or older and who is mentally capable of doing so may make a will.”

It is noted in BCLI’s 2013 Report on Common-Law Tests of Capacity that with respect to testamentary capacity, WESA “doesn’t say what the threshold is, how to determine whether an individual has met the threshold, or how the threshold to make a will compares to the thresholds for other transactions.” BCLI’s 2013 Report suggests that to find answers to these questions, one must turn to jurisprudence.

The Banks Test

The leading authority for the test of capacity for will-making in British Columbia (and in many other common-law jurisdictions) is Banks v Goodfellow. Chief Justice Cockburn delivered the judgement in 1870, and provided four factors for consideration when evaluating testamentary capacity. The will-maker must:

  • Understand the nature of making a will and its effects;
  • Appreciate the extent of the property that will be disposed by the will;
  • Have an adequate appreciation of who will benefit from the will, as well as the moral claims of other persons who should receive benefit from the will; and
  • Recognize the manner in which assets are to be distributed under the will.

The precise wording of the test may vary, but in essence, it is an assessment of these factors that will indicate to a court whether a person has sufficient testamentary capacity. In Malcolm v Rounds, the British Columbia Court of Appeal suggested that even if the exact formula varies, “[t]he fundamental question is whether the testator was of sound and disposing mind and memory.”

The Banks case indicates two ways in which a person can lose testamentary capacity. One way is through “general unsoundness of mind.” An evaluation of how the will-maker meets or does not meet the factors listed above will suggest whether the testator has testamentary capacity. A second way in which a person can lose testamentary capacity is through, “specific delusions.” According to Banks, a will can be found valid even if a person has delusions, so long as the delusions do not affect or pertain to the provisions of the will itself.

The Banks Test and Codification

In its 2013 Report, BCLI did not recommend that the Banks test become codified through statute. The Committee did, however, discuss and evaluate a number of different considerations in coming to this conclusion. While the Committee did note that a codification of the Banks test would provide the public with more certainty, the ultimate conclusion was that the Banks test should remain in the common-law to “allow for greater flexibility.” The Committee suggested that in keeping the Banks test in the common-law, “[c]ase law is seen to be better able to respond to emerging trends and new fact patterns.”

In contrast, the Law Commission noted in its new Consultation Paper that, while “flexibility supplied by the common law is an undeniable advantage,” the Law Commission is not, “persuaded that the test of testamentary capacity is better left to the common law.” The Law Commission’s proposal is that the Banks test be reformed first, and then codified.

The Commission provided five reasons for why the Banks test should be included in statute as well as subject to reform:

  • The Banks test could be amended to be in “simple, modern terms, and in terms more in line with current psychiatric thinking”;
  • There would be an opportunity to specify that incapacity can result from other causes, not just disorders of the mind or delusions;
  • Statutory reform would confirm whether the Banks test has three or four limbs;
  • A test in statute would, “provide an opportunity to clarify that the essential test is of the testator’s ability to understand the will, not whether he or she actually understood the will”; and
  • A test in statute would make the law more accessible.

The Law Commission suggested that, “a number of stakeholders supported placing the Banks v Goodfellow test on a statutory footing using modern language and reflecting current medical knowledge.” It was noted, however, that not all stakeholders held this view. The Law Commission invites consultees to contribute their views on whether the Banks test be placed on statutory footing. 

The Common-Law Test for Mental Capacity: Banks or Another Approach

As stated earlier, BCLI did not recommend codification of the Banks test and did not make any recommendations for reform to this common-law test of capacity. In contrast, the Law Commission made a provisional proposal that the mental capacity test set out in the Mental Capacity Act should be adopted as the test for testamentary capacity.

The Commission identified a number of benefits that could result if the MCA was adopted as the test for testamentary capacity and stated that, “[o]ur preference for adopting the MCA test is reinforced by the fact that doing so could maintain the virtues of the Banks v Goodfellow test while resolving or avoiding the technical issues that the common law test has produced.” The Law Commission asserts in their Consultation Paper that using the MCA as the test for testamentary capacity would be a more consistent, cohesive, and modern approach to the law.


A Statutory Presumption of Capacity

BCLI made the following recommendation in its 2013 Report: “British Columbia should enact legislation to provide that: (a) until the contrary is demonstrated, every will-maker is presumed to be capable of making, changing, or revoking a will…” In their Consultation Paper, the Law Commission noted that BCLI made this recommendation, and that this might combat stereotypes about the capacity of persons with disabilities. The Law Commission provisionally proposed that, “if a reformed version of the Banks v Goodfellow test is set out in statute it should be accompanied by a statutory presumption of capacity.”


For some of the issues related to capacity in making a will, the Law Commission and BCLI came to different conclusions. However, both the Law Commission and BCLI have made similar findings on other issues relating to will-making capacity. Both BCLI and the Law Commission studied the effects of the Banks test and made divergent recommendations with respect to whether the Banks test should be reformed, and further, whether it should be codified. With respect to a statutory presumption of capacity, both law reform agencies were on the same page.

Next week’s post will focus on digital wills, and how BCLI and the Law Commission have approached this developing topic with respect to will-making.

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