Testamentary Capacity (NSW)

Testamentary capacity refers to the ability of a person (the testator) to make a valid will. In New South Wales, testamentary capacity is a cornerstone of succession law, ensuring that the intentions expressed in a will represent the true and informed decisions of the testator. A person can only make legally binding decisions about their deceased estate while they have the requisite testamentary capacity. A lack of testamentary capacity can render a will invalid, leading to disputes, litigation, and perhaps render the estate intestate. This article explores the concept of testamentary capacity in NSW, the legal requirements, the tests used to assess it, common challenges, and the practical steps to safeguard a will’s validity.

The Succession Act

The Succession Act 2006 governs wills and estate matters in NSW. While the Act outlines the formal requirements for making a valid will, the principles of testamentary capacity are derived from common law, particularly the landmark case of Banks v Goodfellow (1870). In this English case, the court established a test for assessing testamentary capacity that remains the legal standard in NSW today. To make a valid will, a person must:

Understand the nature of a will

The testator must comprehend that they are making a will and that the document will dictate how their property is distributed after their death.

Understand the nature and extent of their estate

The testator must have a general understanding of their assets, including their approximate value and nature, even if not in precise detail.

Comprehend moral obligations to beneficiaries

The testator must recognise the people who may have a claim on their estate, such as family members and dependents, and consider these relationships when making the will.

Be free from delusions affecting the will

The testator must not suffer from a mental illness, delusions, or undue influence that impacts their ability to make rational decisions regarding the distribution of their estate.

The importance of testamentary capacity

Testamentary capacity is crucial because it ensures that a will reflects the genuine intentions of the testator. Without it, the validity of the will may be challenged, leading to disputes that can delay estate administration, cause financial losses, and strain family relationships. If the Supreme Court determines that a testator lacked capacity when making their will, the will may be declared invalid. In such cases, the estate will either be distributed under a prior valid will or, if none exists, under the rules of intestacy as set out in succession law.

Assessing testamentary capacity

Determining testamentary capacity often involves a combination of legal, medical, and factual evidence. Courts consider the circumstances at the time the will was executed, including any relevant medical history, behaviour, and external influences on the testator.

When preparing a will, solicitors play a critical role in assessing a testator’s capacity. If there are concerns about capacity, the solicitor should take additional steps to document the testator’s understanding and decision-making process. Medical professionals, such as general practitioners, psychiatrists, and neurologists, may also provide expert opinions on the testator’s mental capacity. Such assessments are particularly important when the testator is elderly, ill, or suffering from conditions like dementia.

Evidentiary considerations

The court examines all evidence, including witness testimony and the surrounding circumstances, to determine the testator’s state of mind when making the will. The focus is on the testator’s capacity at the time the will was executed, rather than their general mental state before or after this period. In legal disputes, evidence of testamentary capacity may be found in:

• medical records

• witness statements

• video or audio recordings made at the time of executing the will and

• notes from the solicitor who prepared the will.

Challenges to Testamentary Capacity

Disputes over testamentary capacity often arise when a will excludes or limits the inheritance of certain family members, especially in situations involving:

Mental illness or cognitive impairment

Conditions such as dementia, Alzheimer’s disease, or schizophrenia can impair a testator’s

ability to make rational decisions.

Age and frailty

Advanced age or physical frailty alone does not negate testamentary capacity, but these
factors may contribute to doubts if they coincide with cognitive decline or susceptibility to
external pressure.

Substance abuse

Chronic alcohol or drug abuse may impair a testator’s mental state, raising questions about
their ability to make informed decisions.

A family member might be inclined to challenge a will because of their first-hand contact
with the testator. However, while the family member might observe signs of forgetfulness, or
disordered behaviour, the legal threshold for incapacity is quite high. A testator can have a
mental illness, and even dementia and psychosis, but that is not proof of incapacity unless
there is also proof of mental incapacity. The court will make an assessment based only on the
severity of the testator’s illness and how it impacted their decision-making ability and reason
when they made the will.

Initial presumption of capacity

If a will is duly executed (signed and witnessed) and appears rational on its face, the law presumes the testator had capacity. This presumption can be rebutted by evidence suggesting otherwise. The onus of proof is on the person challenging the will to prove that the testator lacked capacity to make a will.

Testamentary capacity is composed of rational understanding, comprehension of legal implications and ability to remember pertinent facts. Please contact Go To Court Lawyers if you need advice about defending or challenging a will on the basis of testamentary capacity.