Banks v Goodfellow (1870)

Monday, 01 October 2012
Returning to Banks v Goodfellow, the author argues that this case is as relevant now as it ever was.

When Geoffrey Shindler invited me to speak to you today, I asked him what he would like me to talk about, and he said, ‘Anything.’

And when I asked him how long he wanted me to go on for, he said, ‘For as long as you like.’

Don’t worry. I don’t enjoy making long speeches any more than you enjoy listening to them, but what I’m going to do is spend about ten minutes or so taking a look at one of my favourite cases: Banks v Goodfellow. Every member of STEP will be familiar with this case.

Even willwriters are aware of it. Whenever they complete a Part B certificate in a lasting power of attorney, they say, ‘I am a willwriter and I am familiar with the test for capacity in Banks v Goodfellow.’

It dates from 1870 and is still the leading authority – worldwide – on testamentary capacity. And it exerts a gravitational pull on other tests of capacity, such as the test in Re Beaney for making a substantial lifetime gift. There can’t be many other authorities this ancient that still command so much respect today.

Yet it is precisely because it is so old that some people are positively itching to give it a makeover. Last week I was in Canada, and heard a fascinating talk from Kevin Zakreski of the British Columbia Law Institute, who is currently drafting a consultation paper on the common law tests of capacity, including the test in Banks v Goodfellow. He said:

‘Many of the common-law tests for capacity have their roots firmly established in 19th-century jurisprudence, which was heavily influenced by 19th-century scientific and medical knowledge on the mind.

‘Neuroscience has developed in ways that could not have been foreseen in the 19th-century, but the law has been much slower to discard old insights and theories.’

If you haven’t read the full judgment in Banks v Goodfellow, I recommend that you do so. I have read it several times over the years, and each time I have looked at it again, I have spotted something new that had never occurred to me before. The extraordinary thing about Banks v Goodfellow, though, is that it didn’t say anything new. And that’s the whole point.

Waring v Waring

What it did was to revert to the status quo that had existed in English law since time immemorial until the year 1848, when, in a case called Waring v Waring, the members of the Judicial Committee of the Privy Council fell into error, because they allowed themselves momentarily to be seduced and blinded by science.

They espoused a fashionable doctrine called ‘the doctrine of the unity and indivisibility of the mind’, which was closely associated with a specific psychiatric diagnosis called ‘monomania’, where the patient was obsessed with one particular idea.

The decision in Waring v Waring was followed by Lord Penzance in Smith v Tebbitt in the Probate Court in 1867 and, as the judge in Banks v Goodfellow commented:

‘[These two cases] laid down a doctrine, according to which any degree of mental unsoundness, however slight, and however unconnected with the testamentary disposition in question, must be held fatal to the capacity of the testator.

‘But in both these cases… the wide doctrine embraced in the judgment was wholly unnecessary to the decision, and we therefore feel ourselves warranted, and indeed bound, to consider the question as one not concluded by authority, and on which we are called upon to form our own judgment.’

That is a judicial and gentlemanly way of saying that these two judgments were rubbish.

The chronology

The testator in Banks v Goodfellow was called John Banks, and we know relatively little about him.

Back in the 1990s I wrote a series of articles for the Legal Executive Journal, called ‘A Place in Legal History’, in which I discussed the famous cases, judges and legal personalities associated with a particular city, town or village in England and Wales.

In 1994, I carried out some preliminary research on John Banks for that purpose, and even visited Arkleby, the village in Cumbria, where he lived and died, though I never actually got round to writing an article about him.

I did, however, obtain a copy of his death certificate, and a few certificates relating to other members of the family. And, based on the law report itself and these certificates, the chronology looks something like this:

  • John Banks was born in 1811 or 1812.
  • He may have been a draper, because someone with his name is described as a draper in Keswick in the directory section in A Complete Guide to the English Lakes, published in 1855.
  • Whatever his business, he must have been fairly successful, because he ended up owning 15 cottages in Keswick.
  • He had a sister of the whole blood, called Margaret Banks.
  • They had a half brother, called Jacob Banks, who was the father of the plaintiff in Banks v Goodfellow.
  • In 1838, when he was 26 or 27, John Banks made a will in favour of his sister, Margaret.
  • We are told in the law report that in 1841, when he would have been 29 or 30, John Banks was confined for the first time as a lunatic in the county lunatic asylum, and that:
  • ‘Discharged after a time from the asylum, he remained subject to certain fixed delusions. He had conceived a violent aversion towards a man named Featherstone Alexander, and notwithstanding the death of the latter some years ago, he continued to believe that this man still pursued and molested him; and the mere mention of Featherstone Alexander’s name was sufficient to throw him into a state of violent excitement.’
  • On 16 March 1846, Margaret Banks married a grocer in Keswick named Thomas Goodfellow.
  • About ten months later, on 8 January 1847, Margaret died shortly after giving birth to a daughter, who was named Margaret Banks Goodfellow.
  • Thomas Goodfellow subsequently remarried and had a son, who was the defendant in Banks v Goodfellow.
  • For some reason that we shall probably never know, the young niece, Margaret Banks Goodfellow, lived with her mentally infirm uncle, John Banks, and, despite the fact that he owned so many rental properties, they resided in lodgings in Arkleby with a landlady called Hannah Routledge. It is pretty obvious that both of them needed someone to look after them, and this may have been the most effective and economic way of achieving that objective.
  • On 24 June 1860, the man toward whom John Banks had conceived a violent aversion, Featherstone Alexander, died. According to the probate records he, too, was a grocer in Keswick.
  • From September 1863 John Banks had a succession of epileptic fits, and a blister was applied to his head. Black’s Medical Dictionary describes how to apply a blister in the following way:

‘Mustard is made into a paste and spread on muslin or brown paper, and so applied directly to the skin for 20 or 30 minutes, until a warm glow is felt … The skin should be sponged with warm water, dried and anointed with a little ointment after the mustard is removed.’

  • Shortly after he had this succession of fits, John Banks contacted his agent, Joseph Tolson, who collected the rents on his properties.
  • He asked Mr Tolson to bring George Ansell, a solicitor in Keswick, with him when he came to Arkleby to pay the next half-year’s rents.

The interview

On Wednesday 2 December 1863 Mr Tolson and Mr Ansell travelled together from Keswick to Arkleby. It was a 20-mile trip and we are told that the road was bad. There were no cars in those days and it would have been too far to walk, so they must have gone on horseback or in a horse-drawn carriage. It wasn’t the best time of year to make the journey. There were only about eight hours of daylight. And according to the weather forecast for that day, there were strong to gale force winds with rain or snow. The road took them along the foot of Skiddaw, one of the highest mountains in England, and then along the shore of Bassenthwaite, the most northerly of the lakes in the Lake District.

When they eventually reached Arkleby, John Banks told Mr Ansell that he wanted to make a will, and: ‘He fetched from his room a will which he had made in 1838 in favour of his sister, who had since died, and said he wished to give all his property to his niece, Margaret Goodfellow, in the same way.’

Mr Ansell then drafted a will and got John Banks to sign it on an interim basis, pending the preparation of a fair copy or engrossment. This was his usual practice when dealing with clients in a rural community, when there was potentially a delay between taking instructions and the final completion of the will.

After the matter of the will had been disposed of, there was a general discussion about various business matters.

John Banks suggested that Mr Tolson might care to take a lease of his cottages in Keswick for seven years, and Mr Tolson agreed.

Mr Tolson handed him the current half year’s rents. They came to just over GBP40, which he handed over partly in cash and partly by cheque. Because there wasn’t a bank in Arkleby, Mr Banks asked him to pay the cheque into a bank in Keswick, in which he held an account.

Finally, John Banks had a conversation with his landlady, Mrs Routledge, regarding the amount he should be paying her each week for his board and lodging.

Mr Ansell then returned to Keswick and arranged for the will to be engrossed, and on the first working day after Christmas, Monday 28 December 1863, Mr Tolson returned to Arkleby with the engrossment of the will and the lease.

John Banks read them two or three times and said they were alright, after which he signed both documents and the will was duly attested.

The deaths of John Banks and Margaret Banks Goodfellow

About a year and a half later, on 28 July 1865, John Banks died. According to his death certificate, he died of epilepsy, insanity and coma.

Under the terms of his will, his niece, Margaret Banks Goodfellow, who was then 18, inherited his entire estate.

Margaret Banks Goodfellow herself died at Arkleby two years later, on 6 May 1867, aged 20. According to her death certificate, she died of phthisis, an old medical term for consumption or pulmonary tuberculosis.

The effect of Margaret’s death, underage and intestate, was that her estate – which included John Banks’s 15 cottages in Keswick – passed to her paternal half-brother, who was not related in any way to the late John Banks.

Brett J

John Banks junior, the son of the testator’s late half-brother, Jacob, brought proceedings to test the validity of the will made on 28 December 1863 in favour of Margaret Goodfellow. After all, his uncle had been a certified lunatic who had suffered from monomania, particularly as regards his obsession with Featherstone Alexander.

The trial took place before Brett J (who later became the Master of the Rolls as Viscount Esher) at the Cumberland Assizes in the spring of 1869.

It was a jury trial, and in his directions to the jury Brett J told them that the question they had to decide was: ‘… whether, on the 2nd of December, 1863, or on the 28th of December, 1863, or on both, the testator was capable of having such a knowledge and appreciation of the facts, and was so far master of his intentions, free from delusions, as would enable him to have a will of his own in the disposition of his property, and act upon it.’

The jury returned a verdict in favour of the defendant, Mr Goodfellow, saying that the will ‘was a good and valid will’.

The appeal

John Banks Jr then sought a retrial on the grounds that:

  • Brett J had misdirected the jury; and
  • the verdict had been reached against the weight of evidence.

The alleged misdirection was (and I quote) that the judge: ‘… in leaving it to the jury to decide whether John Banks was free from delusions, did not proceed to tell them that the delusions, under which he had undoubtedly before laboured, might not have been present to his mind at the time of making the will, yet, if they were latent in his mind, so that if the subject had been touched upon, the delusions would have recurred, he was of unsound mind and therefore incapable of making a will.’

Essentially, what the appellant was suggesting is that the solicitor, who took John Banks’ instructions to make the will, should have baited him or wound him up by saying something deliberately provocative such as: ‘Are you going to leave anything to Featherstone Alexander?’

And, as you will recall, the mere mention of that name was sufficient to throw John Banks into a state of violent excitement.

The appeal was heard by four judges of the Court of Queen’s Bench, in Westminster Hall, on 11 January and 13 May 1870. The Court of Appeal, as we know it, wasn’t established until 1875.

The Chief Justice, Sir Alexander Cockburn, took eight weeks to write his judgment, and he handed it down on 8 July 1870.

The judgment

The Court held that, for all practical purposes, Brett J’s direction to the jury had been correct. It was immaterial whether the delusions remained latent or not at the time if the testator was otherwise competent to make a will, as the delusions had no influence upon him in disposing of his property.

I have read Banks v Goodfellow several times over the years, and each time I have spotted something new that had never occurred to me before

One of the reasons why Banks v Goodfellow is still cited and respected as a leading authority worldwide is because the judgment contained an extensive overview of the law relating to testamentary capacity, not only in England, but in a number of other jurisdictions.

The Court considered:

  • eight earlier English cases, the earliest of which was the Marquis of Winchester’s case in 1598;
  • four French authorities, one German and one Italian on testamentary capacity;
  • Roman law, Dutch law and five decisions in American courts, about which the judge was particularly complimentary.

In places, the language of the judgment in Banks v Goodfellow has the majesty and grandeur of Shakespeare or the King James Bible, including, of course, the classic test of testamentary capacity itself, parts of which, I am sure, some of you can recite verbatim as if they were passages from the Bible or Shakespeare:

‘It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.’


As I mentioned earlier, recently there have been several decisions and a number of articles questioning whether the Banks v Goodfellow test is still appropriate in this day and age, and whether it has been superseded by the Mental Capacity Act 2005.

And there have been one or two comments to the effect that: ‘Psychiatry has come a long way since 1870.’

I am not sure how helpful these observations have been. Of course psychiatry has advanced considerably in the past century and a half. Nowadays John Banks would be treated by powerful anti-epileptic drugs for his succession of fits, instead of having a blister of mustard and muslin or vinegar and brown paper applied to his head.

But Banks v Goodfellow has nothing to do with psychiatry. That’s where the Judicial Committee of the Privy Council got it wrong in Waring v Waring. It allowed fashionable views in psychiatry or neuroscience to undermine and usurp the traditional legal test for assessing testamentary capacity.

And the Mental Capacity Act doesn’t supersede Banks v Goodfellow. It merely complements it. The Act requires that someone should be able to understand, retain, and use and weigh the information relevant to the particular decision they are making at a particular time.

What Banks v Goodfellow does is summarise – in simple and succinct terms – the information that is relevant to the decision of making a will.

Essentially, this information has been the same since time immemorial and, unless there is some major evolutionary change in human nature itself, it will continue to be the relevant information evermore.

Author block
His Honour Judge Denzil Lush

His Honour Judge Denzil Lush is Senior Judge of the Court of Protection.

STEP Journal
England and Wales