In Australia, for a will to be valid, the testator must have had testamentary capacity at the time the will was made. This means that they must have been of sound mind and capable of understanding the effect of the will. This page deals with testamentary capacity in Australia.
What is testamentary capacity?
Testamentary capacity is the competence to make or alter a will.
A person will be found to have testamentary capacity if:
- they can understand the nature of a will and its effect on their estate;
- they know the general nature and extent of their estate;
- they understand who has a claim on their estate and who should inherit from it;
- they do not suffer from a medical condition that prevents them from being able to make rational decisions.
A will is only valid if the testator made the document at a time when they had testamentary capacity.
Banks v Goodfellow
The legal test for testamentary capacity was first set out in the English case of Banks v Goodfellow (1870). In that case, John Goodfellow, the testator, had created a will in 1867, in which he designated how his estate would be distributed upon his death, leaving his estate to his niece.
At the time of creating the will, Mr. Goodfellow was suffering from mental illness and was periodically delusional. Mr. Goodfellow’s family members and the witnesses to the will were aware of his mental condition, but the will had been prepared in accordance with legal formalities.
After Mr. Goodfellow’s death in 1869, a dispute arose regarding the validity of his will. The central question was whether Goodfellow had possessed the mental capacity necessary to create a legally binding will.
The court had to determine whether Mr. Goodfellow understood the nature and consequences of making a will, was aware of the extent of his property, considered the claims of potential beneficiaries, and was not under the influence of any mental disorder at the time of making the will. The court found that although the testator had a mental illness, the will was rational as it benefited his closest relative and was therefore valid.
Challenging a will based on lack of testamentary capacity
A will may be challenged if there are doubts that the testator had testamentary capacity. If the court finds that on the balance of probabilities, the will-maker lacked testamentary capacity, it will disregard the will and deal with the estate according to the rules of intestacy.
When a person challenges a will, they are asking the court to assess whether the document is legally valid. This is a different process to contesting a will, which occurs when a party argues that the division of an estate under a will is unfair.
In order to challenge a will, a person must have the legal standing to do so. A person will generally have standing if they are the spouse, partner of child of the deceased.
A will may be challenged on the basis of testamentary capacity in the following circumstances:
- Where the testator was very unwell when they signed the will;
- Where the testator was under medical care when they signed the will;
- Where the testator was away from family and friends when they signed the will.
Conditions that may affect testamentary capacity
A testator’s testamentary capacity may be challenged if they have a medical conditions that impact their cognitive functioning such as psychosis or dementia. However, as Banks v Goodfellow makes clear, the fact that a person suffers from such a condition does not necessitate that they will be found to lack testamentary capacity.
A court that is assessing testamentary capacity will consider the severity of the condition and the extent to which the sufferer’s insight, judgement, and decision-making capacity is affected. It will require compelling medical evidence to find that a testator lacked testamentary capacity.
Guarding against challenges based on testamentary capacity
A person can guard against challenges to their will on the basis of testamentary capacity by ensuring there is proof that they had mental capacity at the time they made their will. This can be done by completing a medical examination of the testator at the time they are making their will and storing the assessment together with the will.
Case Study
In 2016, the Queensland Supreme Court decided the matter of Re Oliver (deceased). In this matter, a testator was found to have lacked testamentary capacity.
The deceased in this case died at the age of sixty-one, having suffered from schizophrenia his whole adult life and having been hospitalised since the age of nineteen. The Public Trustee had managed his affairs for several decades and it sought a Grant of Probate to administer his will, in which he left his entire estate to his sister (one of his four siblings).
The deceased’s brother challenged the will on the ground that the deceased lacked testamentary capacity. The Public Trustee argued that the will was rational as the deceased had left his estate to a close relative and therefore a presumption of validity applied. The claimant presented evidence to overcome this presumption.
Applying the Banks test, the Supreme Court found that the testator had lacked testamentary capacity.
This finding was made due to the absence of explanatory notes about his decision to leave his estate wholly to his sister or showing an awareness that he had other siblings who might have a claim on his estate.
Furthermore, although the testator had been examined by a doctor at the time the will was made, the medical form lacked detail and did not show a history of treatment by the doctor who had signed it.
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