In Canada and most other English-speaking jurisdictions, the leading case on testamentary capacity remains Banks v Goodfellow (1870) a decision from the English High Court in 1870.
Here’s the test:
“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.”
Let’s look at it in more detail:
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.
In Re Clitheroe, [2021] EWHC 1102 (Ch), the English High Court ruled that Banks v. Goodfellow is up to date and good law in England. There are no Ontario cases running against it, so after 155 years, it’s still good law.
Brian Madigan LL.B., Broker