Mid Mountains Legal Blog


Anthony Steel

A person can only make legally binding decisions about what happens to their deceased estate if they have the requisite testamentary capacity, that is: ability to remember pertinent facts, rational understanding, and comprehension of the legal implications of making a will. This article defines testamentary capacity and outlines how a will can be challenged in New South Wales on the grounds of lack of testamentary capacity.

What is Testamentary Capacity?

Testamentary capacity is a legal concept that quantifies a testator’s mental capacity to execute or change a will. In NSW, a testator is assumed to have testamentary capacity unless proven otherwise. It is up to the person challenging a will to present sufficient evidence to establish that the testator is unable to make a will.

Even if someone has reason to doubt the testamentary capacity of a testator, they must be an “eligible person” to be legally entitled to challenge the will. In NSW, eligible persons are beneficiaries of the current or previous will and those who would inherit under intestacy rules.

The Supreme Court of NSW will apply a testamentary capacity test based on the English case of Banks v Goodfellow (1870). This case established that a will can still be valid even if the testator suffers from a mental disorder or disease, provided they pass a four-fold test:

  1. Can the testator appreciate the effect of making a will?
  2. Can the testator recall the assets that make up their estate?
  3. Can the testator comprehend that there are people who are entitled to provisions from the deceased estate?
  4. Does the testator suffer from any kind of disorder that stops them from making rational decisions about the distribution of their estate?

Disorders And Diseases

A family member may be prompted to challenge a will because they see the testator exhibiting symptoms of a disorder or disease. Disorientation, forgetfulness or disordered behaviour may seem like sufficient evidence of testamentary incapacity, but the legal threshold is fairly high. Mental illness, dementia, psychosis, neurological and psychiatric disorders may affect a testator’s mental faculties, but may not be extensive enough to demonstrate that the testator no longer has testamentary capacity. The court will make an assessment based on the severity of the testator’s illness and the impact it has on their reason and decision-making ability.

How Does Someone Challenge A Will?

A person intending to challenge a will on the basis of testamentary incapacity should first file a probate caveat with the court. This is only possible if the court has not already issued a grant of probate for the will, so it is important that the caveator act quickly. The court will then consider the merits of both arguments and either revoke the will and probate a previous will, or dismiss the challenge and probate the will. If there is no previous will, intestacy law will determine the way in which the estate is administered.

Establishing Testamentary Capacity

A testator can take steps to mitigate the chances of their will being challenged on the basis of testamentary incapacity.

  1. they can engage a solicitor to draft their will. Solicitors are trained to recognise signs of diminished capacity and will not take instruction if they have doubts as to the testator’s ability to rationally dispose of their assets. A professionally drafted will bolsters the presumption that the testator was capable of making a will.
  2. If there is any doubt about capacity (due to age, disability or disease) a testator should consult a qualified professional for a complete mental evaluation on or around the time that they execute the will. The physician’s report can be kept with the will and given to any parties that express concerns about the deceased’s testamentary capacity. The report may later play a crucial role as a sworn affidavit in a court hearing as to the testator’s fitness to draft a will.

Case Study

The issue of testamentary capacity was examined, among other issues, in the recent Supreme Court of NSW case of Estate Rofe [2021]. Deceased barrister David Rofe left behind an estate valued at $27 million. Rofe drafted several wills between 1995 and 2014, each one benefiting different parties to varying degrees. Mr Rofe’s last will was executed in 2014 whilst he suffered from dementia.

The court found that given a number of factors, including his progressive dementia, the onus was on the supporters of the 2014 will to prove that Mr Rofe had testamentary capacity when he made the will. The 2014 will was executed some months before Mr Rofe grew gravely ill and two years before he died. Mr Rofe had consulted an independent medical professional before executing the will. The court found that the will itself was rational and responsive to his circumstances. Moreover, Mr Rofe’s legal knowledge and experience equipped him to understand the import of the will.

However, the court found that these factors in isolation were not decisive. The court considered each argument against testamentary capacity in turn:

  1. The court found that the deceased’s habit of keeping his will at hand was not indicative of testamentary incapacity, but rather that it supported other evidence that he was intent on finalising his testamentary arrangement given recent changes to his social circumstances.
  2. The testator’s testamentary capacity was challenged on the grounds that he made drafting mistakes in his will that were not in keeping with his career as a competent solicitor. A spelling mistake of counsel was dismissed as unremarkable, the reference to Victorian instead of NSW legislation was attributed to the fact that the draftsman was a Victorian solicitor. The court determined that editorial perfection was not an acceptable expectation for a will. It found that these grammatical and clerical errors were unrelated to the substantive provisions of the will.
  3. The court found that the testator’s close friendships were not coercive but rather provided the conditions that allowed him to make independent judgments about his testamentary arrangements.
  4. The fact that the testator discussed the terms of the will with a friend on the night that he executed it confirms that he knew and approved of its contents.
  5. The court found that cognitive impairment (due in this case to vascular dementia) does not necessarily negate testamentary capacity. The testator had knowledge and approval of the contents of the will and he had capacity to make a will. The court judged the 2014 will to be the deceased’s freely and capably formed testamentary intentions and ordered that the will be probated.

Contact us if you have any questions regarding testamentary capacity.

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