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This article was written by Dr Nicola Bowes

Dr Nicola Bowes holds a Bachelor of Arts with first class honours from the University of Tasmania, a Bachelor of Laws with first class honours from the Queensland University of Technology, and a PhD from The University of Queensland. After a decade working in higher education, Nicola joined Armstrong Legal in 2020.

Testamentary capacity (NSW)


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

Testamentary Capacity

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

Even if someone has reason to doubt the testamentary capacity of a testator, they can only legally challenge the will if they are an “eligible person”. Eligible persons in NSW are beneficiaries of the current or previous will and those who would inherit under intestacy legislation.

The Supreme Court of NSW will apply a testamentary capacity test based on the British 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, as long as the testator passes 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 observe first-hand the testator exhibiting symptoms of a disease or disorder. Forgetfulness, disorientation or disordered behaviour may seem like sufficient evidence of testamentary incapacity, but the legal threshold is fairly high. Dementia, psychosis, mental illness, psychiatric and neurological 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 how it has impacted their reason and decision-making ability.

How Does Someone Challenge A Will?

Anyone 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 for the caveator to act without delay. The court will then consider the relative merits of both arguments and either dismiss the challenge and probate the will, or revoke the will and probate a previous will. If there is no previous will the estate will be administered according to intestacy law.

Establishing Testamentary Capacity

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

Firstly, the testator 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. Therefore, a professionally drafted will automatically bolsters the presumption that the testator was capable of making a will.

Secondly, if there is any doubt about capacity (because of age, disease or disability) 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 have concerns about the deceased’s testamentary capacity. This report may also later play an important role as a sworn affidavit in any 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 NSW Supreme Court case of Estate Rofe [2021]. The case centred on the estate of deceased barrister David Rofe, who 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 last will from 2014 was drafted while the testator suffered from a form of 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 the testator had testamentary capacity when he made the will. The 2014 will was executed two years before Mr Rofe died, and some months before he grew gravely ill. In addition, the testator had consulted an independent medical professional before executing the will and 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 were not decisive enough in isolation. They considered each argument against testamentary capacity in turn:

  • The court found that the deceased’s habit of keeping his will at hand was not indicative of testamentary incapacity, but rather that it corroborated other evidence that he was intent on finalising his testamentary arrangement given recent changes to his social circumstances.
  • The testamentary capacity of the deceased 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 decided that editorial perfection was not an acceptable expectation for a will. These grammatical and clerical errors were found to have no relation to the substantive provisions of the will.
  • The court found that his close friendships were not coercive but rather provided the conditions that allowed him to make independent judgments about his testamentary arrangements.
  • The fact that the deceased discussed the terms of the will with a friend on the night that he executed the will confirms that he knew and approved of the contents of the will.

The court found that cognitive impairment, resulting in this case from vascular dementia, does not necessarily negate testamentary capacity. The deceased had capacity to make a will and he had knowledge and approval of the contents of the will. The 2014 will was judged to be the testator’s freely and capably formed testamentary intentions, and the court ordered that the will be probated.

Armstrong Legal can help if you have reason to believe that a loved one’s will is invalid. Our contested wills team have extensive experience in disputing wills and can advise you on the best approach to challenge a will on the grounds of testamentary incapacity. Please call our team on 1300 038 223 or contact our offices to make an appointment to discuss your legal needs.

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