Testamentary Capacity: Tests and Evidence

The Test for Testamentary Capacity

The common law test for testamentary capacity comes from Banks v Goodfellow (1870) LR 5 QB 549. Its four limbs examine the will-maker’s understanding and whether a mental disorder affects the distribution. The reported judgment reproduced by the NSW Supreme Court uses these terms:

1. “nature of his act and its effects”: the person understands that a will distributes property after death.
2. “extent of the property”: they understand broadly what property they own and can leave.
3. “comprehend and appreciate”: they can consider the claims of people who might expect to benefit and weigh those claims.
4. “no disorder of the mind”: a disorder must not poison their affections or judgment, or cause a disposition through an influencing delusion.

These limbs concern the person’s ability to make the will. An unusual choice of beneficiary or an unequal distribution does not itself establish incapacity. Dementia can affect the necessary understanding, but its effect must be assessed in the person and the proposed will.

Capacity for daily finances is a separate question. Someone who needs help paying bills can still understand a will. Financial management orders address the management of money during life.

Assessing Capacity When the Will is Made

A testamentary capacity assessment records the person’s understanding of the proposed will while the instructions and execution are taking place. The lawyer needs answers in the client’s own words, including reasons for major changes. A yes-or-no response to whether they understand the will tells you little about their reasoning.

The golden rule from Kenward v Adams (1975) encourages a medical practitioner to assess an elderly or seriously ill will-maker. The practitioner witnesses or approves the will and preserves the examination findings. The reported authority reproduced in a court judgment describes a precaution to reduce disputes. It does not replace the legal test or automatically decide validity.

Give the clinician the proposed will, relevant property information and the legal test. Ask for observations addressing each limb, with the basis for the opinion. A letter of testamentary capacity is more useful when it explains the examination than when it merely says the client is fit to sign.

The NSW Capacity Toolkit recommends open questions and answers from the person being assessed. Its wills guidance asks what the person owns and why they want particular people to benefit. Ask why the proposed will differs from the earlier one. Record communication support and whether another person supplied the answers.

What an Assessment Template Must Record

A testamentary capacity assessment template or checklist can organise the file around these matters:

• The assessment time and its relationship to instructions and signing.
• The assessor’s identity, role and sources of information.
• The proposed will and the earlier will considered.
• The client’s account of their property and its broad value.
• The people whose claims the client considers, including reasons for excluding someone.
• The questions asked and the client’s actual answers.
• Relevant illness, medication, fatigue and communication support.
• The findings on each limb and reasons for the opinion.

A completed checklist cannot prove understanding simply because each box is marked. Preserve the conversation and its context. Reassess when circumstances change between instructions and execution, especially where illness fluctuates.

Hypothetical example: a client wants to leave their home to a carer and exclude their children. They explain the home’s broad value, identify their children and describe their reasons for the change. Those answers address the test directly. If the client cannot identify the home or their children, the assessment needs to explain those failures and their effect on the instructions.

Evidence That Proves or Disproves Capacity

Capacity evidence must connect the will-maker’s abilities with the will under challenge. Build a chronology around instructions and signing, then compare observations from people who saw the person at those times. Later deterioration alone does not establish their earlier condition.

Medical records can show diagnoses, cognitive symptoms and episodes of delirium. Solicitor file notes show the instructions, questions and reasons given for the distribution. Attesting witnesses and other witnesses can describe conversations and behaviour. Earlier wills show the previous distribution and help identify changes needing explanation.

Keep each witness’s observation separate from their conclusion. A note that the client explained the beneficiaries’ competing claims supplies more detail than a statement that they seemed normal. Likewise, a witness’s report of confusion needs the context and timing of that confusion.

Bank statements can support a lack of testamentary capacity argument when they show unpaid bills, repeated purchases or sudden large gifts. Identify who controlled the account and whether the pattern coincides with the will-making period. Missed payments can result from an attorney’s actions or administrative problems. A gift can be deliberate.

The statements help test the factual account of what happened. They cannot, on their own, establish the mental understanding required for a will. Compare the transactions with medical evidence and the client’s explanations before drawing an inference about capacity.

FinTrace saves lawyers and forensic accountants hours of statement review by converting supplied PDFs into a searchable Excel ledger and a readable findings report. Suspicious transactions and unusual transfers are clearly flagged, with each finding tied to the source PDF filename and page. That gives you the financial chronology and its supporting evidence for the estate file.

Pressure on a capable will-maker raises a separate question of undue influence. If the will remains valid, an eligible applicant’s family provision claim addresses provision from the estate.

Affidavits and Probate Procedure

An affidavit of testamentary capacity gives sworn or affirmed evidence about the deceased’s understanding when the will was made. A probate registry can request it when the application or supporting documents raise a capacity concern. The person who gives the evidence swears the affidavit.

The medical practitioner can explain an examination, relevant records and their opinion. The lawyer who prepared the will can describe instructions and execution. Another witness can give observations within their own knowledge. Each affidavit needs the basis of the evidence and its relationship to the will-making period.

Victoria’s medical practitioner affidavit guidance identifies treatment or assessment around execution as the relevant evidence. It also provides routes for evidence from the drafting lawyer or another person. If medical evidence cannot be obtained, the Probate Office usually requires an explanation and other capacity evidence.

An affidavit does not remove a genuine dispute. Contested probate requires the court to evaluate the whole evidence about the will’s validity.

NSW, Victoria and Queensland

The Banks v Goodfellow common law test applies in NSW, Victoria and Queensland. The capacity question remains the same, while probate forms and registry procedures differ. A medical opinion prepared for will-making and an affidavit filed after death have different purposes.

In NSW, the Supreme Court’s probate application guidance explains contested proceedings where capacity is disputed. Witness evidence can also be required to address execution concerns. Evidence must respond to the concern actually raised.

Victoria publishes specific testamentary capacity affidavit templates. The medical template asks for observations and records, then the practitioner’s opinion about capacity when the will was made.

Queensland’s routine probate document list requires the supporting probate affidavit, Form 105. It does not list a separate capacity affidavit for every ordinary application. The registry can request further affidavits after reviewing the documents.

Statutory Will Applications

A statutory will is made through a court order for a living person who lacks testamentary capacity. The applicant puts the proposed will and evidence of the person’s circumstances before the court. Accurate estate evidence lets the court assess what the proposed distribution would do.

A relative, attorney or guardian can bring the proposed arrangements to the court through an application. Their relationship alone does not decide whether the application succeeds. The applicable statute governs the applicant’s position and the information the court needs.

In NSW, the Supreme Court can authorise a will under section 18 of the Succession Act 2006 for a person who lacks testamentary capacity. Section 19 requires the applicant to obtain the Court’s leave. A relative, attorney or guardian seeking the order must address the statutory requirements, including whether they are an appropriate applicant.

Unless the Court directs otherwise, the leave material must explain the application and establish the person’s lack of testamentary capacity. It includes the proposed will, available evidence of their wishes and prospects of regaining capacity. The estate evidence includes a reasonable estimate of its size and character, earlier wills and potential intestacy beneficiaries. The Court also considers the people who might reasonably expect provision and relevant family provision claims.

The NSW Supreme Court’s statutory-will discussion reproduces these requirements. This is an application for a court-authorised will during the person’s lifetime. It differs from witnessing an ordinary will or contesting a deceased person’s will.

In Victoria, Wills Act 1997 sections 21 to 21B allow any person to apply without a separate statutory leave step. Section 21A identifies information the court can require, including the estate estimate and earlier wills. The court must be satisfied about incapacity and the proposed intentions.

Queensland’s Succession Act 1981 sections 21 and 23 also have no separate statutory leave step. The court must be satisfied that the applicant is appropriate. The application must include an estate estimate, the proposed will and available evidence of previous wills and intestacy claimants.

Preparing the Financial Evidence

Prepare an estate schedule supported by the underlying records. The financial material needs to explain the proposed distribution against the person’s actual circumstances:

• Assets, their ownership and estimated values.
• Liabilities, including loans and other debts.
• Income and expenditure affecting the likely estate size.
• The current will or, if there is none, the likely intestacy distribution.
• The likely net estate and any uncertainty affecting the estimate.

Bank statements substantiate balances and movements in cash assets. Property and other assets need their own supporting records. Reconcile transfers across accounts so the same money is counted once. Separate jointly owned property and other assets passing outside the estate from property the will can distribute.

The statements also help test how an attorney has managed the money. Unexplained transfers to an attorney or prospective beneficiary can reduce the available estate and raise questions about proposed benefits. Match each transfer to its authority and explanation. Identify any disputed recovery claim separately from money already held.

Put the estate schedule beside the proposed will before filing. The court needs to understand both the property available for distribution and the financial dealings that affect the proposed beneficiaries.