2nd June, 2025
In New South Wales, making a valid Will requires more than signing a piece of paper. One of the most important requirements is testamentary capacity. This means the person making the Will -the testator -must be mentally capable of understanding what they are doing. If they lack capacity, the Will may be challenged or even declared invalid.
What is Testamentary Capacity?
Testamentary capacity is a legal term referring to a person’s ability to make a valid Will. The test comes from the historic case of Banks v Goodfellow (1870), which still guides courts in NSW today. In this case, the court set out four key requirements. The testator must:
- Understand the nature and effect of making a Will.
- Know the general extent of their property.
- Recognise the people who might have a moral claim to their estate.
- Not suffer from delusions or mental illness that affect their decisions.
Although the case was decided in England over 150 years ago, its principles remain vital. Australian courts regularly apply this test when assessing whether a person had the capacity to make a Will.
Why Does Capacity Matter?
Testamentary capacity protects a person’s final wishes. Without it, the Will may not reflect what the testator truly wanted. For example, if a person with dementia makes a Will while confused, the court might later find it invalid. In such cases, a previous Will may apply, or the estate might be distributed under intestacy laws. This can lead to conflict, delays, and legal costs for families.
How Do Solicitors Assess Capacity?
Solicitors have a duty to assess their client’s capacity, especially if there are red flags.
Warning signs may include advanced age, memory problems, or complex family dynamics. If any doubts arise, solicitors should:
- Ask clear and specific questions about the testator’s assets and intentions.
- Make detailed notes of the meeting.
- Seek a medical opinion, particularly from a GP or specialist.
- Consider recording the interview (with consent).
By doing this, they help protect the Will from future challenges.
Practical Advice for Clients
If you are making a Will, be open with your solicitor. Let them know about your health, family issues, or past Wills. If someone may later question your capacity, it’s wise to get a medical assessment. This can provide strong evidence that you understood your decisions.
For families contesting a Will, it’s important to gather evidence from the time the Will was made. Medical records, witness statements, and solicitor notes can all help the court decide whether the testator had capacity.
In Banks v Goodfellow, the testator suffered from delusions. However, the court ruled that his Will remained valid because the delusions did not affect his choices. This case shows that even people with mental illness can make a valid Will—so long as their illness doesn’t impact the decisions in it.
How We Can Help
At Castrikum Adams Legal, we understand the complexities of Wills and Estates Planning. Whether you are drafting a Will or involved in a dispute, our experienced solicitors can guide you through the process. We’re here to protect your wishes and your loved ones.
Contact us today to ensure your Will is legally sound and your estate is in safe hands.