Friday, August 05, 2011

Banks v. Goodfellow: Delusions and Testamentary Freedom

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 been made.

Per Cockburn C.J. in Banks v. Goodfellow (1870), L.R. 5 Q.B. 549 (Eng. Q.B.) at p. 565

Banks v. Goodfellow, and the above quoted passage in particular, is frequently cited as the authoritative tests for testamentary capacity. (Westlaw shows 261 Canadian cases that have cited Banks v. Goodfellow). The case is cited for all manner of disputes over testamentary capacity, but the judgment was really about one aspect of capacity: delusions and their relationship to testamentary capacity.

Chief Justice Cockburn’s judgment focused on the question of whether a man could have legal capacity to make a will if he suffered from delusions that were unrelated to his will. John Banks made a will in which he left his estate to a niece, who was also his heir-in-law, and who died intestate after Mr. Banks. Her heir would, therefore, receive his estate. Mr. Banks had for some time both before and after he gave instructions for, and executed, his will, believed that he was pursued and molested by devils and evil spirits. He also believed that a man named Featherstone Alexander pursued and molested, and he held this belief even after Mr. Alexander died. There was a medical opinion that he was insane and incapable of managing his affairs, but there was also evidence that he did manage his own funds and financial interests.

Chief Justice Cockburn, considered and rejected the doctrine that “the mind, though it has various faculties, is one and indivisible; if it is disordered in any one of these faculties, it if labours under any delusion arising from such disorder, though its other faculties may remain undisturbed, it cannot be said to be sound; such a mind is unsound, and testamentary incapacity is the necessary consequence.”

In arriving at a more nuanced approach to the question of when delusions vitiated capacity to make a will, Chief Justice Cockburn considered the question in the context of testamentary freedom. The underlying principle of testamentary freedom is that “the instincts, affections, and common sentiments of mankind may be safely trusted to secure on the whole a better disposition of the property of the dead, and one more accurately adjusted to the requirements of each particular case than could be obtained through a distribution prescribed by the stereotyped and inflexible rules of a general law.”

But as a condition to the exercise the power of making testamentary dispositions, the maker must possess sufficient intellectual faculties. It is in that context, that Chief Justice Cockburn sets out the above-quoted tests for testamentary capacity.

Chief Justice Cockburn reasoned that if the delusions did not have an impact on Mr. Bank’s decisions about his will, he should not be deprived of his testamentary autonomy.

But where a jury are satisfied that the delusion has not affected the general faculties of the mind , and can have no effect on the testator’s will , we can see no sufficient reason why the testator should have lost his right to make a will, or why a will made under such circumstances should not be upheld.

The Court upheld the jury’s finding that Mr. Bank’s will was valid. The delusions could not have had any influence on Mr. Bank’s decisions in disposing of his property.

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