Dr. K. Shulman an Ontario Psychiatrist and others have proposed d an update to the traditional Banks v. Goodfellow test. The testator must be:
1. capable of understanding the act of making a will and its effects,
2. capable of understanding the nature and extent of their property relevant to the disposition,
3. capable of evaluating the claims of those who might be expected to benefit from his estate and able to demonstrate an appreciation of the nature of any significant conflict and or complexity in the context of the testator’s life situation,
4. capable of communicating a clear, consistent rationale for the distribution of their property, especially if there has been a significant departure from previously expressed wills or wishes, and
5. free of a mental disorder including delusions, which influences the distribution of the estate.
Otherwise, it’s fairly like the Banks v. Goodfellow test, but expressed in a more up to date manner.
Here’s a comparison:
Here’s a side-by-side comparison table of the two tests:
| Element | Banks v. Goodfellow (1870) | Shulman et al. (Modern Update) | Key Difference |
| Understanding the act | Must understand the nature of making a will and its effects. | Must be capable of understanding the act of making a will and its effects. | Same requirement, restated. |
| Knowledge of property | Must understand the extent of the property being disposed of. | Must be capable of understanding the nature and extent of their property relevant to the disposition. | Shulman narrows focus to what matters for the actual will, not trivial details. |
| Awareness of beneficiaries | Must comprehend and appreciate the claims of those who might expect to inherit. | Must be capable of evaluating the claims of potential beneficiaries and appreciate conflicts/complexities in their life situation. | Shulman expands: requires higher-level evaluative reasoning, not just awareness. |
| Ability to articulate rationale | No explicit requirement to explain or justify dispositions. | Must be able to communicate a clear, consistent rationale, especially when departing from past wills or expectations. | Major new element; adds an evidentiary standard. |
| Freedom from disorder/delusion | Must not be suffering from a disorder of the mind that influences the will’s dispositions. | Must be free of a mental disorder, including delusions, that influences the distribution of the estate. | Same principle, but Shulman uses more clinical/psychiatric language |
Comment
We will not know whether this new standard will be applied in Ontario until we have a decision of the Ontario Court of Appeal.
Brian Madigan LL.B., Broker