Under English law, the test for assessing a person’s mental capacity depends on the decision they are making. Currently, the position is that while the Mental Capacity Act 2005 (MCA) provides the statutory framework for assessing capacity in many areas, including decisions about property and financial affairs, capacity to make a will remains governed by a separate common law test established over 150 years ago in the case of Banks v Goodfellow (1870) LR 5 QB 549.
This distinction has long raised questions over whether the two approaches to capacity can coexist. Debate has intensified following the Law Commission’s recommendation in 2025 that the MCA test should replace Banks v Goodfellow for the making of wills, while recent cases continue to demonstrate the application of the existing common law test.
Application of Banks v Goodfellow
Under the Banks v Goodfellow test, a testator must understand the nature and effect of making a will, have a general understanding of the property they are disposing of, appreciate the claims of those who might reasonably expect to benefit from their estate, and not suffer from a disorder of the mind that affects decisions about how their estate should be distributed.
Recent decisions have reaffirmed that memory loss and cognitive impairment do not, of themselves, prevent a person from having testamentary capacity. In Parfitt v Jones & Anor [2025] EWHC 1552 (Ch) and MacDougall v Thomas [2026] EWHC 1142 (Ch), the courts emphasised that the relevant question was whether the person’s condition affected their ability to satisfy the Banks v Goodfellow test.
Capacity can also fluctuate over time. In Parker v Felgate (1883) L.R.8P.D.171, the court recognised that a will is not necessarily invalid simply because the testator lacked testamentary capacity when it was executed. If the testator had capacity when giving instructions and understood they were signing a will that reflected those instructions, the will may still be valid.
These principles remain important where a testator is experiencing cognitive decline. A diagnosis of a condition affecting cognition, such as Alzheimer’s, does not, of itself, establish incapacity. The focus remains on whether the condition affects the individual’s ability to make the relevant testamentary decision.
The Mental Capacity Act: a different test for capacity
The continued application of Banks v Goodfellow means that testamentary capacity sits alongside the statutory framework established by the MCA. While there are similarities between the two approaches, there are important differences.
Under the MCA, a person is presumed to have capacity unless the contrary is established. In testamentary capacity cases, capacity will ordinarily be presumed where a will is duly executed and rational on its face. If real doubt arises, however, the burden generally falls on the person seeking to uphold the will to establish capacity.
Tension also arises around when capacity must exist. The Parker v Felgate principle may permit a will to remain valid despite a loss of capacity before execution, whereas the MCA requires capacity at the material time of the decision.
However, the extent to which these distinctions have practical consequences is open for debate. In Baker v Hewston [2023] EWHC 1145 (Ch), HHJ Tindal proposed what he described as a 'compromise solution'. He considered that the MCA and Banks v Goodfellow were broadly consistent and that the differences between them were overstated. While the MCA does not govern testamentary capacity in ordinary probate proceedings, he suggested it could be used as a cross-check when applying Banks v Goodfellow. He also considered that differences in the burden of proof would rarely affect the outcome where sufficient evidence is available to assess capacity, although it may prove decisive where evidence is lacking.
Since then, the Law Commission's 2025 review described the distinction as a historical anomaly and recommended that the MCA test should replace Banks v Goodfellow as the test for testamentary capacity. Such a change would bring testamentary capacity within the same statutory framework used to assess capacity in other contexts, marking a significant departure from the common law test that has governed wills for more than 150 years.
For now, however, Banks v Goodfellow remains the applicable test where an individual is making their own will. Recent decisions, including Ugolor v Ugolor [2026] EWHC 745 (Ch) and MacDougall v Thomas [2026] EWHC 1142 (Ch), confirm its continuing application. Practitioners must therefore continue to navigate the distinction between the two regimes, although, as set out above, the practical differences between them may, in some cases, be less significant than their differing legal frameworks might suggest.
Evidence is crucial
Whatever test applies, capacity disputes often turn on the quality of the contemporaneous evidence.
The recent decision in Ginger & Ors v Mickleburgh & Ors [2026] EWHC 100 (Ch) provides a useful illustration. The court concluded that the deceased lacked testamentary capacity because delusions arising from late-onset schizophrenia influenced the terms of his will. Despite concerns about the testator's mental health, no formal medical assessment of testamentary capacity was obtained, beneficiaries were involved in the will-making process, and contemporaneous records explaining the (informal) assessment of capacity were lacking.
The case offers several lessons. Where capacity may be in doubt, the so-called 'golden rule' recommends obtaining a contemporaneous medical assessment. Where appropriate, seeing a client alone and keeping detailed attendance notes can also provide valuable evidence if the will is later challenged.
Unless reform is enacted, the two regimes as set out in Banks v Goodfellow and under the MCA will continue to coexist. For practitioners, that makes careful identification of the applicable test, and clear evidence of the individual’s decision-making capacity, particularly important where capacity is later challenged.
Emma Holland, partner and Dan Amroussi, associate, in the trust and probate litigation team at Stewarts
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