Testamentary Capacity

What Is Testamentary Capacity?

When someone makes a will in New South Wales, one of the most important legal requirements is that they have what is known as testamentary capacity. This means the person must understand what they are doing and have the mental ability to make decisions about how their estate should be distributed after death. If a person lacks testamentary capacity, their will may be challenged and potentially declared invalid.

At Golottas Solicitors, we often assist clients with questions about testamentary capacity. Sometimes a family member believes a will is invalid because the deceased did not have the capacity to make it. In other cases, clients want reassurance that their own will cannot be disputed in the future. Understanding this legal concept is crucial for anyone involved in estate planning or contesting a will in NSW.

The Legal Test for Testamentary Capacity

The standard for testamentary capacity was set out in an English case from 1870, Banks v Goodfellow, and it continues to apply in NSW today. To have testamentary capacity, a person must:

1. Understand the nature and effect of making a will
2. Know the extent of the property they are disposing of
3. Be aware of the people who might reasonably expect to benefit from their estate, such as family members
4. Be free from any mental disorder or condition that influences how they distribute their estate

In practice, this means the person making the will must be able to identify their assets, recognise their beneficiaries, and make decisions without being unduly influenced by others.

Why Testamentary Capacity Matters

A will is only legally valid if the person making it has testamentary capacity at the time it is signed. If capacity is later questioned, the validity of the entire will may be challenged in court. This is particularly relevant in cases where:

• The person making the will is elderly or has memory loss
• There is evidence of dementia or another cognitive impairment
• The will departs significantly from previous versions and excludes close family members
• There are concerns about undue influence from carers or relatives

If the court finds the person lacked testamentary capacity, the will can be declared invalid, and the estate may instead be distributed according to an earlier valid will or the laws of intestacy.

How Capacity Is Assessed

Testamentary capacity is assessed based on the circumstances at the time the will was made. The court considers medical evidence, witness testimony, and the drafting solicitor’s records.

Solicitors preparing wills often take extra steps when capacity is in doubt, such as:

• Asking detailed questions to ensure the client understands what they are doing
• Taking written notes about the client’s responses
• Obtaining a medical report from a doctor or specialist confirming capacity
• Having independent witnesses present when the will is signed

These measures provide valuable evidence if the will is later challenged.

Contesting a Will on the Grounds of Testamentary Capacity

One of the most common reasons for contesting a will in NSW is lack of testamentary capacity. If you believe a loved one did not have the mental ability to make a valid will, you may be able to challenge it in the Supreme Court of NSW.

When assessing such a claim, the court considers:

• Medical records from around the time the will was made
• Testimony from doctors, carers, and family members
• The drafting solicitor’s notes and observations
• Whether the deceased understood the effect of the will and the claims of potential beneficiaries

If the court is not satisfied that the deceased had capacity, the will may be set aside. In that case, an earlier will might take effect, or the estate may be distributed according to intestacy rules.

Protecting a Will from Challenges

For clients making a will, there are practical steps to reduce the risk of disputes over testamentary capacity:

• Make a will while you are still in good health
• Review and update your will regularly
• Seek advice from an experienced wills and probate solicitor
• If there is any question about capacity, obtain a medical certificate at the time of signing
• Ensure your solicitor keeps detailed notes of your instructions

Taking these precautions helps ensure your wishes are followed and reduces the likelihood of costly litigation.

Testamentary Capacity and Undue Influence

It is important to distinguish between testamentary capacity and undue influence. A person may technically have the capacity to make a will, but if another individual exerts pressure or manipulates them into making certain decisions, the will may still be invalid. Claims of undue influence are separate from capacity but often arise in the same disputes.

Real Examples of Capacity Issues

• Elderly parent with dementia: A will excluding one child was challenged after medical records showed the parent had advanced dementia and could not recall their assets. The court found they lacked testamentary capacity, and the earlier will was reinstated.
• Sudden change in beneficiaries: A man in hospital changed his will shortly before death, leaving his estate to a neighbour instead of his children. Medical evidence showed he was heavily medicated and confused at the time. The court declared the will invalid.
• Capacity confirmed by solicitor and doctor: A woman with mild memory issues made a new will with assistance from her solicitor and GP, both of whom confirmed her understanding. The will was upheld despite family objections.

Testamentary Capacity and Family Provision Claims

Even if a will is valid, family members may still bring a family provision claim if they believe they were unfairly excluded. Testamentary capacity and family provision are different legal issues, but both are common grounds for disputes over wills.

At Golottas Solicitors, we advise clients on both types of claims. If you are worried about a loved one’s capacity or feel you were unfairly left out of a will, our team can guide you through your legal options.

Frequently Asked Questions About Testamentary Capacity

1. What is testamentary capacity?
   Testamentary capacity is the legal ability to make a valid will. It requires a person to understand what a will is, what property they have, who might reasonably benefit, and to make decisions free from mental impairment or undue influence.
2. Can dementia affect testamentary capacity?
   Yes. Dementia can impair a person’s ability to understand or remember key information. However, not everyone with dementia automatically lacks capacity. The question is whether the person understood what they were doing at the time the will was made.
3. Who decides if someone had testamentary capacity?
   Ultimately, the Supreme Court of NSW decides if a will is challenged. The court looks at medical evidence, solicitor’s notes, and witness testimony to determine whether the deceased had capacity when the will was signed.
4. How can I prove someone lacked testamentary capacity?
   Evidence may include medical records, testimony from carers, or inconsistencies in the will. A solicitor can help gather evidence and prepare a legal case to challenge the will.
5. Can a solicitor refuse to prepare a will if capacity is in doubt?
   Yes. Ethical obligations require solicitors to ensure their client has capacity. If there is doubt, the solicitor may request a medical assessment before proceeding.
6. What happens if a will is declared invalid due to lack of capacity?
   If a will is invalid, the court may reinstate an earlier valid will. If there is no earlier will, the estate is distributed according to NSW intestacy laws.
7. How can I protect my own will from challenges?
   The best way is to make your will while you are healthy, seek advice from an experienced solicitor, and consider obtaining a medical certificate confirming capacity at the time of signing.

Conclusion

Testamentary capacity is a vital legal requirement for any valid will. It ensures that the person making the will understands their decisions and is capable of making them freely. If capacity is in doubt, disputes can arise and may result in the will being declared invalid.

At Golottas Solicitors, we help clients create valid wills, advise on disputes about capacity, and represent families in contested estate matters. Whether you want to protect your own will from challenges or contest a will you believe is invalid, our experienced team can provide the legal guidance you need.

Contact Golottas Solicitors today to discuss your situation and ensure your rights are protected.