1. understand the nature and effect of making a will;
2. understand the extent of his or her assets;
3. know close family and friends so that the testator can consider their claims to his or her bounty ; and
4. not be under any insane delusions that affect what the testator decides to do in his or her will.
What if someone meets those criteria, but his decision making ability is impaired to a point where his will ought not be given effect? Should the courts consider other criteria, in light of the advances in psychiatry since 1870, when Banks v. Goodfellow was decided?
In England, Mr. Justice Briggs in the High Court of Justice, Chancery Division considered this issue in Key & Anor v. Key,  EWHC 408.
When George Douglas Key died on July 20th, 2008, he left four children. He had two sons, namely, Richard George Frederick Dey, and John Douglas, Key, and two daughters, namely, Jane Frances Key and Mary Ellen Boykin.
The case was a dispute over a will George Key signed on December 6, 2006, in which he left most of his estate to his two daughters. He had previously given his two sons land. So the effect of the 2006 will would have been to treat his four children fairly equally taking into account the gifts of land to his sons.
But if his 2006 will were declared invalid, his sons would receive most of his estate under a will he made on December 18, 2001.
When he signed his 2006 will, George Key was 89 years old. His wife Sybil Key had died a week before he instructed his lawyer to prepare the new will, and 9 days before he signed it. Before his wife died he had been having some short term memory problems. He still drove his car, but would on arriving at a store forget what he was there to buy.
Shortly after his wife died, his daughter Mary Boyken returned from the United States to look after him. She arranged for the lawyer to attend to get instructions from her father for a new will, and was present during the meeting.
The lawyer who drew the will gave evidence indicating that George Key met the criteria in Banks v. Goodfellow, but he did not consult with Mr. Key's doctors, nor make extensive notes of their meeting.
Mr. Justice Briggs found that George Key was devastated by the death of his wife when he made the will. She had died unexpectedly, and George Key was dependent on her. The judge considered medical evidence that bereavement may affect a person’s ability to make decisions.
Mr. Justice Briggs considered that the legal criteria for capacity to make a will should reflect advances in psychiatry. He wrote at paragraphs 95 and 96:
95. Without in any way detracting from the continuing authority of Banks v. Goodfellow, it must be recognised that psychiatric medicine has come a long way since 1870 in recognising an ever widening range of circumstances now regarded as sufficient at least to give rise to a risk of mental disorder, sufficient to deprive a patient of the power of rational decision making, quite distinctly from old age and infirmity. The mental shock of witnessing an injury to a loved one is an example recognised by the law, and the affective disorder which may be caused by bereavement is an example recognised by psychiatrists, as both Dr Hughes and Professor Jacoby acknowledged. The latter described the symptomatic effect of bereavement as capable of being almost identical to that associated with severe depression. Accordingly, although neither I nor counsel has found any reported case dealing with the effect of bereavement on testamentary capacity, the Banks v. Goodfellow test must be applied so as to accommodate this, among other factors capable of impairing testamentary capacity, in a way in which, perhaps, the court would have found difficult to recognise in the 19th century.
96. Banks v Goodfellow was itself mainly a case about alleged insane delusions. Many of the cases which have followed it are about cognitive impairment brought on by old age and dementia. The test which has emerged is primarily about the mental capacity to understand or comprehend. The evidence of the experts in the present case shows, as I shall later describe, that affective disorder such as depression, including that caused by bereavement, is more likely to affect powers of decision-making than comprehension. A person in that condition may have the capacity to understand what his property is, and even who his relatives and dependants are, without having the mental energy to make any decisions of his own about whom to benefit.
Mr. Justice Briggs held that George Key did not have the capacity to make the will 2006 in view of the effect of his wife’s death on him. Mr. Justice Briggs wrote at paragraphs 114 and 115:
114. In summary therefore the combination of Dr Hughes' expert evidence, coupled with my inability to accept the detail of the evidence of Mr Cadge upon which both Professor Jacoby's opinion and more generally the defendants' whole case was heavily dependent, together with the preponderant weight of the evidence suggesting that Mr Key was devastated, rather than merely upset, by his wife's death, leads me to the conclusion that, in the words of Erskine J in Harwood v. Baker (supra) at page 297, Mr Key was "incompetent to the exertion required" for the purpose of making an important decision as to the disposition of his property upon his death.Accordingly, the 2006 will is invalid, and George Key’s estate will be distributed in accordance with his 2001 will.
115. This is not one of those cases in which it is possible to point simply to a conspicuous inability of the deceased to satisfy one of the distinct limbs of the Banks v. Goodfellow test. Rather it is a case in which I have been persuaded, taking the evidence as a whole, that Mr Key was simply unable during the week following his wife's death to exercise the decision-making powers required of a testator. In any event, the defendants have not discharged the burden of proving that he was. To the extent that such a conclusion involves a slight development of the Banks v Goodfellow test, taking into account decision-making powers rather than just comprehension, I consider that it is necessitated by the greater understanding of the mind now available from modern psychiatric medicine, in particular in relation to affective disorder.
Key v. Key is an English case, and is not binding on British Columbia courts. But the courts in B.C. may follow it if judges here consider the reasoning persuasive.
As a lawyer who draws wills, I like the Banks v. Goodfellow criteria, because I can structure my interview with clients to elicit the information required to support a will through routine questions about their assets, family and reasons for making the gifts they wish to make in their wills.
On the other hand, it does seem reasonable for the courts to take into consideration the last 140 years of psychiatry. We have all met people who are quite intelligent, understand their circumstances, but whose judgment may be severely impaired.
Perhaps the greatest feature of common law is its adaptability on a case-by-case basis. I don’t expect Canadian courts to articulate a whole new set of criteria to replace the Banks v. Goodfellow test in the foreseeable future. But over time, new criteria may emerge.