Authors: John E. S. Poyser, Jennifer R. Lamb, Helen R. Ward KC

Solicitors are obliged to address capacity issues when helping a client make a will. The test for capacity articulated in Banks v Goodfellow works for most situations. But what happens in unusual cases? Can lawyers (or judges) rely on the Banks test? This paper provides a framework to deal with capacity issues in non-standard transactions, both in lawyers’ offices during estate planning and in court during litigation.

This paper is part of a collection presented at LESA’s 2025 Refresher: Wills and Estates in Victoria, BC on April 10-12, 2025.