The Banks v Goodfellow Test Explained for British Columbia Estates

You may have seen the words "Banks v Goodfellow" in a lawyer's letter or a court document about a will and wondered whether it is a rule you need to learn. It is a case name, but it has become shorthand for the question courts ask when someone says a will-maker was not mentally capable.

This article explains where the test fits in British Columbia law, how it connects to other estate questions, and which practical steps matter if you are caught up in a dispute. It is general information, not advice on your situation.

This article covers the law of British Columbia.

What Banks v Goodfellow is

Banks v Goodfellow is a decision from 1870. CanLII commentary describes it as the leading authority on testamentary capacity, still applied about 150 years later. Testamentary capacity simply means the mental capability needed to make a will.

The same commentary says the wording of the test has stayed the same while later case law refined its criteria. That is why a lawyer's letter may cite the 1870 case alongside more recent decisions. The exact criteria, and how they apply to one particular person, are usually explained by a lawyer who has reviewed the evidence.

How it fits with the Wills, Estates and Succession Act

Under the Wills, Estates and Succession Act (WESA), s. 36(1), a person who is 16 or older and mentally capable of doing so may make a will. A will made by someone under 16 is not valid, and age is separate from capacity, so a person who is 16 or older can make a will only if mentally capable.

Section 36 sets the requirement of being mentally capable but does not itself define the test. The test comes from case law, which British Columbia courts apply together with s. 36. So when a document cites Banks v Goodfellow, it is generally giving content to the words "mentally capable" in the statute.

The Supreme Court of Canada applied the Banks v. Goodfellow test in Ouderkirk v. Ouderkirk (1936) to insane delusions affecting a will-maker's dispositions. The delusions in that case concerned the character and conduct of the will-maker's wife.

Who has to prove what

Vout v. Hay, decided by the Supreme Court of Canada in 1995, is the leading Canadian authority on suspicious circumstances in will disputes. It held that where suspicious circumstances relate to mental capacity, the person propounding the will reassumes the legal burden of establishing testamentary capacity.

Suspicious circumstances do not raise the standard of proof. The evidence is scrutinized in accordance with the gravity of the suspicion, and the standard remains the balance of probabilities.

Suspicion alone does not prove fraud or undue influence. Suspicious circumstances do no more than rebut the presumption of capacity and of knowledge and approval, and a person alleging undue influence or fraud generally still has to prove it, except where WESA s. 52 shifts the onus.

Capacity is only one question

A lawyer's letter may raise several different grounds at once. They are separate questions with different sources.

The court can order a document to be fully effective as a will even though it does not comply with the Act, but that is a cure for formal defects, not for lack of capacity.

What to do next

• Keep the letter or court document and note every date on it.
• Find out whether a probate application has been made. A person who receives notice may oppose a grant by filing a notice of dispute (Form P29) under Rule 25-10.
• Know that filing a notice of dispute prevents a grant from being issued before the person can apply for an order requiring security.
• Remember that the personal representative must not distribute the estate within 210 days after the grant, except by court order.
• Keep a wills variation claim separate in your mind: it must be commenced within 180 days from the date the grant is issued in British Columbia.
• Ask a lawyer promptly which limitation period applies to a validity challenge. The basic period under the Limitation Act is 2 years from discovery, but how it applies here depends on the facts.

A lawyer can read the actual decisions cited in your documents and explain how they apply to your facts.

Frequently asked questions