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Testamentary Capacity

A person must have the proper mental capacity to make or update a will — this is called “testamentary capacity” and is one of the key elements of a valid will. The question of testamentary capacity is an important consideration in will-making and can be a contentious issue.

How often do we hear family members arguing over a loved one's ‘state-of-mind’ and how something is ‘what Grandad would have wanted’ when sadly, his memory and ability to make reasonable decisions comes into question?

A person may lose testamentary capacity due to age, injury, deteriorating health, or a combination of these things.

The test of testamentary capacity

The test of testamentary capacity was established almost 150 years ago in 1870, in an English legal case called Banks v Goodfellow. The language used reflects the Victorian era, but the key elements remain relevant:

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 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 have been made.

Translated to a more contemporary understanding, the will-maker must:

  • understand the nature and effect of the will;
  • understand the extent of his or her property;
  • understand the claims which he or she ought to consider; and
  • be free of illogical beliefs that are not in sync with his or her level of education and surroundings.

If the will-maker’s capacity cannot be established, then the will cannot be made, or an existing will cannot be updated. A will-maker who is intermittently unsound may still make a valid will if it can be shown that the will was made at a time of sanity.

What happens if a person did not have testamentary capacity to make a will?

If you suspect that a deceased person did not have the capacity to make a will, you may apply to the Supreme Court to challenge the validity of the will.

This arises most frequently where the will maker is ill, for example, in hospital on medication, or elderly and suffering from dementia.

It is more difficult to set aside a will on grounds that the will maker lacked testamentary capacity if:

  • the will is prepared by a competent lawyer who took appropriate instructions from the will maker, and retains detailed records about those instructions, and was satisfied the will maker had the requisite testamentary capacity to make a will; and
  • a written report is obtained from the will maker’s doctor or specialist, at around the time of execution of the will, confirming that the will maker had testamentary capacity.

If a deceased did not have testamentary capacity to make a will, then the Supreme Court must declare that the will is invalid. In this case, the most previous valid will of a deceased person is the relevant document.

Douglas Cheveralls Lawyers has experience in providing advice and representation in claims where the validity of the will has been challenged on the grounds that the deceased did not have the testamentary capacity to make the will. If you would like advice about a potential dispute, or how to avoid a dispute, please contact us.