Nicholas Kyriakoudes

The Banks Test

In order to make a valid will a testator (the person who makes the will) must have testamentary capacity. This means that the testator must have the requisite mental ability that the law imposes on them when they give instructions to a solicitor about their will and when they sign their will. Known as the Banks v Goodfellow test, the requirements of this test involve 4 basic elements:

  1. The testator understands the nature of the act of making a will and the effects of their will.
  2. They understand the extent of the property which they are disposing of in their will.
  3. The can comprehend who may make a claim on their estate (Have you been left out of a will? Or are you concerned about someone you have left out of your will? | Hansons Lawyers).
  4. They are not suffering form a condition or insane delusion which affects their decision making.

All the above elements must be demonstrated by a testator to be able to make valid will.

Temporal considerations

The important time periods for assessing capacity are when the testator initially gives instructions to the solicitor concerning their will and then when they execute their will. Because of this, it is possible that a testator can have intervening periods of incapacitation which wont affect the validity of their will. For example, if a testator gives instructions, then becomes ill for a period and is unable to meet the banks test but then subsequently executes during a period where they pass the banks requirements.

When a will is properly executed, the validity of the will cannot be disputed by virtue of the fact that a testator later becomes incapacitated. The banks test is not an ongoing requirement, and its elements need only be satisfied when instructions are given and when the testator signs their will. However, if the testator signed the will and there is evidence that they lacked the requisite capacity required in banks then it is possible the will is invalid meaning their prior will is their last valid will or they have died intestate (What happens if I die without a will? Why should I make one? | Hansons Lawyers).

Capacity is a question of fact not a medical issue

As the issue of capacity is a question of fact, it is not a medical issue. Medical referrals and evidence may be persuasive evidence of whether a given testator has capacity but such opinion is not necessary and is not determinative of whether a testator has capacity.

In the recent decision of Aleta Gooley & Anor v Brett Gooley [2021] NSWSC 56 at [715] the court reinforced the nature of the capacity test as an issue of fact;

  • “It is clear that while the Court may be assisted in its assessment by medical experts, the question of testamentary capacity is ultimately a question of fact for the trial judge, and lay evidence may equally be relevant (see, e.g., Croft v Sanders at [86], [128] (White JA, Bathurst CJ and Gleeson JA agreeing)). It has generally been said that neither expert medical evidence nor the opinions of attesting witnesses as to competency are on their own decisive…”

The main responsibility for determining capacity lies on the solicitor (and if in proceedings, the judge based on the evidence before them). This is because solicitors are trained in assessing their clients for capacity and have an awareness of what the law requires.

If you have concerns about your will or about your capacity or the capacity of someone you know please feel free to contact us on 42 222 666 or by email at