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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 (Qld)


It is a tenet of succession law that only someone with sufficient mental acuity can make a will. A testator must meet a certain standard of comprehension in order to have testamentary capacity. If there is any doubt as to a testator’s ability to understand their actions, then an eligible party can challenge the validity of the will. This article explains the nature of testamentary capacity and how it is assessed in Supreme Court cases in Queensland.

Testamentary Capacity

The word testamentary comes from the Latin testamentarius, meaning “pertaining to a will”. Testamentary capacity is therefore a person’s competence to make or change a will. In Queensland, the law assumes that a testator has adequate capacity until compelling evidence is presented to the contrary.

Only those people who have an interest in the deceased estate may challenge a will on the basis of testamentary incapacity. Here, “interest” refers to anyone who is mentioned in a current or previous will of the deceased or would be entitled to inherit if the person died intestate (that is, without making a valid will).

The Supreme Court assesses testamentary capacity based on a multistep test that originated with the 1870 British case of Banks v Goodfellow. This case is significant because it established that a testator could suffer from a mental defect and still make a legally valid will, providing that the testator:

  1. understands the effect of writing a will;
  2. recalls (in general terms) the assets of their estate;
  3. comprehends that certain people have a right to inherit from the estate; and
  4. does not suffer from any type of disease or disorder that would prevent them from making rational choices about the distribution of their estate.

One hundred and fifty years later, this test is still used to determine whether someone with some degree of incapacity or impairment is, nonetheless, competent to make or amend a will.

It must be noted that the threshold for testamentary incapacity is quite high, and anyone who challenges a will must provide compelling evidence to support invalidating the will. Family members will often observe daily signs of mental frailty and worry that their relative is not capable of rationally disposing of their assets. However, just because someone has moments of confusion or forgetfulness, this does not presuppose that they lack testamentary capacity. The court will assess each case based on the type and severity of the disorder and the overall impact on the testator’s ability to make rational decisions.

Challenging A Will

The first step for anyone who intends to challenge a will on the basis of testamentary incapacity is to file a probate caveat with the Supreme Court of Queensland. This is only feasible if the court has not yet issued the executor of the estate a grant of probate for the will. The caveator will then file an official challenge with the court.

During a disputed will case, the court will hear arguments for and against the deceased’s testamentary capacity and the validity of the will. The court will then either reject the challenge and move forward with probating the will, or invalidate the will and either probate an older will or, if there is no valid previous will, the deceased estate will be subject to intestacy law.

Can A Testator Forestall A Challenge?

Establishing testamentary capacity is a common concern for someone making a will, particularly for a testator who is elderly, or who suffers from psychological or cognitive impairment. A testator in these circumstances can take a proactive approach in order to forestall a challenge against the validity of their will. A crucial step that a testator can take is to engage a solicitor to draft their will instead of relying on an informal will or filling out a will kit.  A solicitor will not take instruction from a client if they have any doubts as to the testator’s capacity to make reasoned decisions about the disposition of their assets. As such, the court is predisposed to presume that a professionally prepared will is a sign that the testator had sufficient capacity to make a will.

Additionally, if there is likely to be doubt about testamentary capacity (because of disability, disease or age), a testator can consult a physician for a complete evaluation contemporaneously with executing their will. The physician’s written assessment can then be made available to interested parties who have reservations about the testamentary capacity of the deceased. In the event that someone challenges the will, this report will be a crucial piece of evidence in the case.

The contested wills team at Armstrong Legal can help whether you have concerns about establishing your own capacity to make a will, or if you have doubts about the validity of another person’s will. Please call our helpful team on 1300 038 223 for any legal assistance or contact us without delay.

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