Banks v Goodfellow and Will Capacity in British Columbia

If you are in a will dispute, you have probably seen a lawyer or a court decision refer to Banks v Goodfellow. The case is more than 150 years old, yet it still sits at the centre of capacity arguments.

This article explains what the case is, how it fits with British Columbia's statute, and how it plays out when a will is challenged. It is general information and not a substitute for advice.

This article covers the law of British Columbia.

Why a Victorian case still matters

Banks v Goodfellow, decided in 1870, is described in CanLII commentary as the leading authority on testamentary capacity, still applied about 150 years later. The same commentary notes that its wording has stayed the same while later case law has refined its criteria.

That history is why you will see the case cited in modern disputes. Courts do not start from scratch each time. They use the established test and the decisions that have developed it.

How it fits with the BC statute

WESA section 36 says a person who is 16 or older and mentally capable may make a will. The section sets the requirement of being "mentally capable" but does not itself define the test. The test comes from case law, which BC courts apply together with section 36.

A will made by a person under 16 is not valid, and a person aged 16 or older can make a will only if mentally capable. Formal requirements are separate from capacity. A will must be in writing, signed at its end by the will-maker (or the signature acknowledged) in front of two or more witnesses present at the same time, and signed by those witnesses in the will-maker's presence.

In practice, then, the statute supplies the requirement and Banks v Goodfellow and the cases following it supply the detail. The precise wording of each part of the test, and how recent decisions have refined it, is something a lawyer can confirm for your circumstances.

The delusions part of the test

One part of the test concerns delusions. In Ouderkirk v. Ouderkirk, the Supreme Court of Canada in 1936 applied the Banks v. Goodfellow test to insane delusions that affected a will-maker's gifts. The delusions in that case concerned the character and conduct of the will-maker's wife.

The general idea in plain words is that a will-maker's decisions should not be driven by a false belief caused by a mental disorder. Whether a particular belief fits that description is a factual question that depends on evidence.

How the test plays out in a dispute

The Banks v Goodfellow test is only one piece of the process. Suspicious circumstances are addressed in Vout v. Hay, the leading Canadian authority. 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. It remains the balance of probabilities, with evidence scrutinized according to the gravity of the suspicion.
• Suspicious circumstances may raise a suspicion of fraud or undue influence, but they only rebut the presumption of capacity and of knowledge and approval. The person alleging undue influence or fraud generally still has to prove it, except where WESA section 52 shifts the onus.
• Under section 52, once a challenger shows the other person was in a position of potential dependence or domination, the party defending the will must prove no undue influence was exercised.

The capacity questions are decided where validity is formally challenged, by an application to prove the will in solemn form under Rule 25-15 of the Supreme Court Civil Rules.

Timing matters as well. A person receiving notice of a probate application may oppose a grant by filing a notice of dispute under Rule 25-10 (Form P29). Filing one prevents a grant from being issued before the person can apply for an order requiring security. After a grant, the personal representative must not distribute the estate within the 210 days following the grant, except by court order. How the Limitation Act applies to a validity challenge depends on the facts, so it is worth confirming with a lawyer.

What to do next

If a case citation has appeared in your matter, ask the person who cited it to explain what it means for the facts. A lawyer can read the judgments and tell you how the test is currently expressed and applied.

• Ask which court decisions are being relied on and why.
• List the facts that bear on the will-maker's understanding, with dates.
• Gather the will, earlier wills and any medical or care records you can lawfully access.
• Note any person who was involved in arranging the will.
• Get legal advice on timing before taking steps in court.

Frequently asked questions