Testamentary Capacity in Will Disputes NSW
Protecting Your Rights and Your Loved One’s True Wishes
Grief, Doubt, and Testamentary Incapacity
You can challenge a Will if you think that the Will-writer (the Testator) lacked Testamentary Capacity … they didn’t understand exactly what they were writing, nor the mental clearness to sign it.
This is one of the most common grounds for disputing a Will … often made because of the Will-maker’s age, state of health, or declining cognitive condition when they wrote down their wishes.
At Falzon Legal, we guide you compassionately through the whole process at such a difficult time. Providing support and advice, we aim to ensure that your loved one’s actual final wishes are honoured … reflecting their intentions, not those coming from confusion or impaired capacity.
What Is Testamentary Capacity?
Simply speaking, Testamentary Capacity is the legal term that’s used when talking about a person’s mental clarity when they create their Will. In NSW, it’s a legal requirement that the Will-writer has Testamentary Capacity. That is, they are of sound mind, memory, and understanding when they write, or change, their Will.
The test for Testamentary Capacity stretches all the way back to an important English 19th-century case, Banks v Goodfellow (1870). This case indicated the necessary points that must be met to show that a person is mentally and legally able to write a Will.
The Checklist for Testamentary Capacity in NSW
The Testator must …
- Understand what a Will is – they must grasp what a Will means, what it’s used for, that it’s legally binding, and how it affects their assets.
- Comprehend their own assets – have a knowledge of what they own, how much they own, and what they will be giving away.
- Be aware of expected beneficiaries – understand who would normally and morally receive an inheritance, such as family members and dependents.
- Be free from any delusions – mental impairments, or hallucinations that would affect how they decide to write the Will and who benefits.
Challenging a Will Based on Testamentary Capacity
To show that the Will-maker didn’t meet the requirements as outlined in Banks v Goodfellow, you might need to prove one of the following:
Testamentary Capacity Grounds for Will Challenge
- Illness or mental decline – such as severe dementia, Alzheimer’s, age-related decline, Acquired Brain Injury (ABI), or other impairments that affect judgement, understanding, and memory.
- Mental conditions – psychiatric afflictions or mental illness that might impact understanding or how beneficiaries are chosen. For example, schizophrenia, bipolar disorder, or borderline personality disorder.
- Medication or injury – where the Will-maker had been taking medicines that affected cognition, and/or was suffering/recovering from an illness that impaired clarity.
- Undue influence – when pressure, manipulation, or coercion situations overlap with mental clarity issues. For example, a person trying to make the Will-maker change their Will while in a confused state.
- Fluctuating or temporary Testamentary incapacity – where the Testator may have clarity generally, but when they wrote and signed the Will, they were delusional … perhaps due to illness or infection.
Have Concerns About a Loved One’s Capacity When They Wrote Their Will?
Assessing Testamentary Capacity
Role of the Solicitor
The solicitor should always go through a Testamentary Capacity checklist before acting for a Will-writing client … ensuring that they meet the four Banks vs Goodfellow requirements. If they have doubts, they may refer their client to an expert such as a doctor or psychiatrist.
Role of Doctors
A medical professional may then perform a clinical Testamentary Capacity assessment to ensure the potential Will-maker has sufficient clarity. If they are satisfied that they do, they issue a letter of capacity for the Will … confirming that, to the doctor’s best knowledge, the person was lucid and understands what a Will means.
Role of Witnesses
The two Witnesses who sign the Will are also crucial. While they have no direct responsibility (or expertise) to make an assessment for Testamentary Capacity, they should still be satisfied that the Testator is lucid and coherent when they sign the Will. Later, they may be asked to provide evidence if the Will is challenged.
Since responsible solicitors strive to ensure Testamentary Capacity when creating a Will … it can provide an additional layer of defence if the Will is disputed, compared to a DIY Will. That said, it can still be challenged by specific individuals if they have concerns.
Feeling Someone Lacked Testamentary Capacity When They Wrote Their Will?
Who Can Challenge a Will for Lack of Capacity?
- Current beneficiaries – people who are named in the Will.
- Excluded previous beneficiaries – individuals who were mentioned in an earlier version of the Will, but have since been removed or had their inheritance reduced.
- Family members – people who would otherwise inherit under intestacy if there were no Will (or the current Will is found to be invalid).
- Concerned Executors – named fiduciaries who have doubts or worries that the Will was valid when it was written.
At Falzon Legal, we know you may have concerns about challenging a Will. It can perhaps feel disrespectful or inappropriate to dispute the supposed wishes of the recently passed.
Proving Lack of Testamentary Capacity in NSW
To show a lack of Testamentary Capacity, the person making the challenge must demonstrate that the recently passed didn’t meet one or more of the four tests from Banks v Goodfellow.
The Types of Evidence That May Be Used Can Include:
- Medical records and cognitive assessments – perhaps the most powerful proof, including medical practitioner notes, doctors’ assessments, and specialist reports.
- Witness testimony – affidavits provided by family members, friends, or carers that indicate that the deceased showed confusion, memory loss, or delusion.
- Solicitor evidence – the original notes from the solicitor who assisted in creating the Will. Checking if they looked for Testamentary Capacity, or they had doubts.
- Previous Wills – looking at how the current Will compares to earlier versions, particularly if there are drastic alterations without rational explanations.
- Timeline of illness vs date of Will – demonstrating that illness resulted in a lack of clarity at or near the time when the Will was signed.
Disputing a Will is so much harder if Probate has been granted, and the Executor has started distributing the estate. Falzon Legal can help by lodging caveats that prevent any allocations until the challenge is resolved … so speak to a legal professional straight away.
Defending Against a Lack of Testamentary Capacity
If you’re an Executor who needs to defend the Will from unfounded, dubious, or malicious actions … Falzon Legal can help. We strive to safeguard the estate and uphold the true intentions of the deceased, giving them a voice when they can no longer speak.
While our defence assistance depends on the grounds for the challenge, our strategy often includes:
- Showing clarity – demonstrating through evidence that the Testator was of sound mind, or was having a clear moment, at the time the Will was created.
- Will rationality – proving that the Will contents make sense and are in line with the deceased’s intentions and life values.
- Independent expertise – providing the letter of capacity if one exists, or solicitor notes showing they checked for Testamentary Capacity.
- Witness statements or affidavits – from the actual people who were present during the Will’s preparation or signing, who saw that the Testator was coherent.
- Examine the challenger – looking at why the claimant is making a challenge, and seeing if there are provable, questionable motives.
- Presenting earlier legal Wills – showing that the Will writer’s intentions are consistent over a period of time.
How Falzon Legal Can Help With Testamentary Capacity Cases
We assist you through:
✔ Obtaining medical and legal evidence – gathering crucial documentation from Testamentary Capacity assessments to affidavits to support your case.
✔ Representing clients in mediation first, then litigation if needed – always seeking the most peaceful resolution before court action.
✔ Balanced approach – whether mounting a challenge or defending the Will, we bring the same dedicated, compassionate approach.
✔ Support and understanding – with empathy and sensitivity, providing a human touch to what can be heartwrenching situations.
FAQs About Testamentary Capacity
What Is Testamentary Capacity in NSW?
This is a legal test required by law, which states that a Will-writer must be of sound mind, memory, and understanding when they create and sign their Will. It includes knowing what a Will is and its implications, who is going to benefit, and the scope of their assets.
What Is the Checklist for Testamentary Capacity?
This is a four-criterion test that a solicitor uses to check that the Will-maker has the necessary understanding to write and execute a Will. It stems from the 1870 English case of Banks vs Goodfellow.
What Is Testamentary Incapacity?
This is when a person is deemed to lack the required mental clarity to create a valid Will. Their lack of lucidity could be down to old age, mental illness, or neurological issues.
How Do You Prove Lack of Testamentary Capacity?
Depending on the circumstances, you can show a lack of Testamentary Capacity through medical records, witness statements, cognitive assessments, and timelines … proving that the Testator was impaired when they signed the Will.
Can Dementia or Alzheimer’s Invalidate a Will?
It can, yes. But, a person challenging the Will must show that the mental condition stopped the Will-writer from understanding the nature and implications of their actions when they signed the Will. Alzheimer’s or Dementia on its own isn’t enough evidence, as they may have been lucid at the time of the Will’s execution.
What Is a Letter of Capacity for a Will?
This is a useful document, often provided by a doctor, who speaks to and examines the Will-maker. It states the doctor believes the Will-maker has the necessary mental clarity to write a Will.
Can a Will Be Challenged Years After It Was Signed?
Yes! There are no time limits on challenging a Will … unlike the 12-month deadline for contests. That said, the longer the time that passes since the deceased died, the harder successful challenges are to make.
Have More Questions About Testamentary Capacity?
Speak With a Will Disputes Lawyer About Testamentary Capacity
Falzon Legal gives you the compassionate and professional advice you need at such an emotionally affecting time. With consideration and unparalleled legal expertise, we find the truth, safeguard the dignity of your loved one, and find a just and fair resolution.
When you’re ready to talk, we’re ready to listen.