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What is the required testamentary capacity when making a will?

When making a will the testator (person who is making the will) must have the required mental capacity and intent. This is called testamentary capacity. If a testator does not have testamentary capacity when they gave instructions for making their will, or when they signed their will, then their will can be challenged and declared invalid by a Court.

The case which is often sighted by the Courts as setting out a “test” for determining

testamentary capacity is Banks v Goodfellow (1870) LR 5 QB 549. The Courts have applied the case of Banks when assessing testamentary capacity by asking the following questions:

  1. Did the testator understand the nature and effect of the will?

  2. Did the testator know and understand in general terms the nature and extent of their property;

  3. Did the testator comprehend and appreciate the claims to which they ought to give effect; and

  4. Was the testator affected by delusions with regards to those people that should be considered when making the will.

The onus of proof is on the person challenging the will to raise doubt about the testamentary capacity of the testator. When determining capacity, the Courts will often consider:

  • Instructions, file notes and records of the solicitor who drafted the will;

  • Medical records; and

  • Statements by witnesses.

There have been a number of cases around testamentary capacity and some noteworthy principles that have developed in the common law (that is case law) include:

  • A partial unsoundness of mind does not necessarily mean that a testator lacked testamentary capacity (Banks v Goodfellow);

  • Advanced age does not of itself prove a testor did not have testamentary capacity (Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558); and

  • The existence of dementia does or guardianship order not automatically mean that a person lacks testamentary capacity (Re Estate of Bellew, Unreported, Supreme Court of NSW, McLelland J, 13 August 1992, BC9201679).

Other reasons why a will might be declared invalid?

In addition to a lack of testamentary capacity, a will may be declared invalid by a Court in the following circumstances:

  • There was a lack of knowledge and approval by the testator of the contents of the will;

  • There was a fraud;

  • There was undue influence on the testator; or

  • There was a forgery.

If you are considering challenging a will, you can contact our office for a confidential consultation on 03 9450 9400. We can also assist you with other estate planning matters such as drafting wills, powers of attorney and Part IV Applications.

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