This is the first in our series about challenging a Will. In this series we will deal with testamentary capacity, undue influence, Family Provision Act claims, and the concept of the notional estate.
As Wills and Estates lawyers, we often have to advise clients who may have suffered some trauma, who may be impaired due to age, or who may be suffering from a condition that affects their capacity to understand what they’re doing, such as dementia.
If a person does not have the necessary testamentary capacity, then the Will may be overturned.
What is Testamentary Capacity?
The test for testamentary capacity in NSW is stated by Chief Justice Cockburn in Banks v Goodfellow (1870) LR 5 QB 549 at 565.
A Will-maker has testamentary capacity where:
- They understand the nature and effect of making a Will;
- They appreciate the extent of the property they are disposing of in their Will;
- They understand the moral claims of potential beneficiaries (that is, those people the testator reasonably should provide for under the Will); and
- They do not have a “disorder of the mind” including an “insane delusion” affecting their disposal of property. If their “mind had been sound”, the testator would not have disposed of property in this way.
Adults and Testamentary Capacity
Before a Will is made, lawyers need to confirm the testator’s testamentary capacity. This is generally not an issue.
If the lawyer has doubts, they may seek evidence showing the testator’s capacity to make a Will (e.g. a medical report). Such evidence reduces the risk of the Will being challenged on the basis of the testator’s alleged incapacity.
If a testator lacks testamentary capacity, but a Will is still required, an application can be made for the Supreme Court to authorise a Will.
Minors and Testamentary Capacity
In NSW, the minimum age for making a Will is 18 years old. Under the Succession Act 2006 (NSW), minors are deemed to lack the necessary legal personality and capacity.
There are some exceptions. Minors who are married, or are contemplating marriage can make valid Wills. The NSW Supreme Court may also authorise minors to make Wills.
Challenging a Will: Lack of Testamentary Capacity
A Will may be challenged on the basis that the testator lacked testamentary capacity when they signed it.
Incapacity requires the testator to have more than a false belief that impacted their Will-making.
They must be affected, in the words of Banks v Goodfellow, by “insane delusion”. According to other case authorities, this delusional belief must be:
- “completely irrational”;
- “so firm that no evidence, no persuasion, could affect them”; and
- must cause the testator to believe false facts that “no rational person would have believed” (Boughton v Knight (1873) LR 3 P&D 64; Bull v Fulton  HCA 13).
Seek Expert Advice
Martin Bullock Lawyers are experts in drafting Estate documents including Wills, Powers of Attorney and Appointment of Enduring Guardians.
If you need a Will, or require advice in relation to testamentary capacity issues, contact Greg Martin or Jacqueline Wainwright on (02) 9687 9322.