Testamentary capacity is the capacity to make a Will.
A case from the 1870s, Banks v Goodfellow,[i] is still the leading authority for the test of testamentary capacity. The Court said:
It is essential to the exercise of such power that the testator [will-maker] shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties—that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.
Another case[ii] from the 1870s also specified that the highest degree of mental capacity is needed to make a Will.
In simple terms, if a person wants to make a Will, they must have testamentary capacity, which means they must be able to understand:
- The legal effect of making a Will;
- The type, size and value of their estate, at least generally;
- Who might be able to have a claim over their estate, and why; and
- The strengths of such persons’ claims, and must be able to evaluate them.
If a person cannot understand all of these requirements, then they do not have testamentary capacity.
If a person did not have testamentary capacity at the time of making his or her Will, then the document cannot be their Will and will be invalid.
Who has to prove what?
Capacity is presumed until the contrary is shown. If a Will is signed correctly and in accordance with the law, then without more, this is usually sufficient to prove that the Will-maker (“Testator”) knew and approved the terms of his or her Will.
When the question of capacity is raised and the validity of the will is challenged, it us up the person who is putting forward the Will to satisfy the Court that the deceased had the necessary capacity to make that Will.
How do you prove testamentary capacity (or lack of) if someone has died?
Suspicions as to a person’s capacity may arise if the Testator was:
- Very old;
- Delusional; and/or
- Affected by drugs or alcohol.
Suspicions may also arise if the Will left close family members or friends out of their Will, or made a Will that was very different to a previous Will.
Evidence used to determine whether a person had testamentary capacity can be obtained from many sources, including:
- Witnesses to the execution of the Will;
- Persons who knew of the Testator before and after the issue that caused them to potentially lack capacity;
- The Testator’s medical practitioner and other health professionals;
- The lawyer who took instructions for the preparation of the Will.
If you believe someone may not have had testamentary capacity when making his or her Will, a Caveat may need to be lodged in the Supreme Court to prevent the Will from being proved and Probate granted. Therefore, it is important you seek legal advice as soon as possible after.
[i] (1870) LR 5 QB 549.
[ii] Boughton v Knight (1873) LR 3 P & D 64.