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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 (Vic)


Anyone who intends to create a will must have the requisite testamentary capacity. If someone who lacks this capacity makes a will, any party with sufficient standing can file a challenge against the will with the Supreme Court of Victoria. The court has authority under the Wills Act 1997 to revoke a will made by someone without capacity and order that the deceased estate be distributed in line with a prior will or in accordance with intestate succession legislation. This article outlines the grounds for challenging a will on the basis of testamentary capacity in Victoria and illustrates these principles through a case study.

Defining Testamentary Capacity

Testamentary capacity is a gauge of the mental faculties of a testator when they create their will. A testator must be of competent mind, understanding, and memory in order to make a valid will. All testators are assumed to have testamentary capacity until it is proven that they do not. The onus is therefore on the person challenging the competency of the testator to prove that the person was incapable at the time that they made their will.

Succession law in Victoria still uses the established test of testamentary capacity drawn from the British case of Banks v Goodfellow (1870). In this case, the court found that although the testator suffered from a mental disorder, his will was valid because it was rational and benefited the testator’s nearest relative. This case gave rise to a four-part test of testamentary capacity:

  1. Does the testator understand the purpose of a will and how it will impact their deceased estate?
  2. Does the testator have a general knowledge of the assets that compose the estate?
  3. Does the testator comprehend who has a moral and legal claim upon the estate?
  4. Does the testator suffer from a mental or medical condition that would stop them from making rational decisions about their estate?

More recent cases that deal with testamentary capacity have expanded on these questions to create a more nuanced assessment. For example, the requirement that a testator recalls the assets of their estate may not reflect current financial practices, where many people have investment or portfolio companies managing their assets. A testator may know in general terms that they have a diversified portfolio, but not know the specific details.

Similarly, the requirement that a testator comprehends the claim of others on their estate ignores the realities of testamentary freedom. Just because the wording of a will does not acknowledge certain individuals who may have a claim on their estate does not mean that the testator was unaware of their existence or their entitlement.

Medical Conditions That Can Affect Testamentary Capacity

A relative of the deceased will often be driven to challenge a will because they know the testator was of diminished capacity and question whether the will truly reflected the deceased’s wishes. It is common for a will to be challenged if the testator suffered from dementia, psychosis, psychiatric or neurological disorders, substance abuse, or personality disorders.

It is important to know that individuals who suffer from these conditions are not automatically assumed to lack testamentary capacity. The court measures capacity according to the severity of the condition and the relative effect on the testator’s insight, judgment, and decision-making ability. The court will only invalidate a will if there is compelling evidence to establish the testator’s lack of testamentary capacity.

Challenging A Will On The Basis Of Testamentary Incapacity

Someone may also be compelled to challenge a will if the will was made when the testator was in a vulnerable position. For instance, if the will was written just before the testator died, or while the testator was very unwell, then there may be a reason to doubt the veracity of the wishes expressed in the will. This is especially true if the testator was separated from their family and under institutional care when they signed the will.

Who Can Challenge The Will On The Basis Of Testamentary Incapacity?

In Victoria, anyone can lodge a probate caveat against a will to prevent it from being probated, but only those with  “standing” can challenge the will. The list of people who have standing includes any beneficiary of a previous will, a relative who would inherit under intestacy, someone with a relevant share in the estate, or a person who would benefit if the will were found to be invalid. In practice, it is typically a family member who challenges the will of their loved one.

Establishing Testamentary Capacity

There are some measures that a testator can take to forestall a challenge to their will based on testamentary capacity. A physician can examine the testator to assess their will-making capacity at the time when the will is made. The intent of this approach is that if a medical and neurological assessment is enclosed with the will, this may dissuade family members from challenging the will. A medical affidavit can also be used in case there is a court hearing on the testamentary capacity of the deceased.

Case Study

The court considered the issue of testamentary capacity in the 2019 Victorian case, In the Matter of the Will and Estate of Joyce Helen Greer, Deceased. The testator was 95 years old when she made a last will disposing of an estate valued in excess of $8,000,000. One of the testator’s sons was disinherited because of his mother’s disapproval of his relationship with someone she considered unsuitable. The executors of the estate were the testator’s other son and her accountant.

The disinherited son asserted that his mother lacked testamentary capacity to make a will or recognise valid claims on her estate. The executors tendered evidence that a specialist drafted the will in consultation with the testator after taking comprehensive instructions and copious notes. The testator’s solicitor also asked for a medical report from the family doctor, which was presented to the court during the hearing. The court found this report compelling and more persuasive than the evidence tendered by medical experts who had not examined the deceased.

The court found that a testator can still legally have testamentary capacity even in cases where there is residual doubt as to their mental acuity. The court cited the opinion of Justice Kirby in Re Griffith (1995) that a person’s testamentary freedom to draft a will as they like includes the freedom to be “unfair, unwise or harsh with one’s own property”. The court was convinced that the deceased had sufficient testamentary capacity when they made the will and the plaintiffs were awarded a grant of probate.

The contested wills team at Armstrong Legal can help you create a will to safeguard against challenges of testamentary incapacity. Alternatively, if you are worried that the will of a loved one does not represent their true testamentary wishes, our team can help you lodge a probate caveat and challenge the will in court. Please contact our offices today to make an appointment or phone 1300 038 223 to discuss your case.

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