With an ageing population of post war baby boomers marching (hopefully) towards retirement, thoughts in that age group will inevitably turn to more sombre matters regarding their potentially dwindling estate and how best to arrange their affairs for the welfare of their family after they are gone.  

The legal principles regarding capacity to make a will (testamentary) have been identified over one and a half centuries with one oft-quoted decision from as early as 1870 still considered to be good law.1  Here the judge spoke about the necessity for a testator in exercising the power to make a will to understand ‘the extent of the property of which he is disposing’.  

In other words you need to know what you have to give before you meet the test of capacity to actually give it! 

In understanding the property the testator was giving away, one was also required to ‘comprehend and appreciate the claims to which he ought to give effect’.  In explaining how to ‘comprehend and appreciate’ those claims upon his estate, the Judge said that this could occur where ‘no disorder of the mind shall poison his [the testator’s] affections, pervert his sense of right, or prevent the exercise of his natural faculties.’

The final test of comprehending and appreciating those who would claim upon his estate was 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.’  

A good summary of how the court judges whether you had the testamentary capacity to make your will was considered much more recently in a 2012 decision that approved various cases after 1850 and repeated the principles.2

These principles summarised in those various decisions were that:

First, that the person who proposes that a will is valid must satisfy the court that the will was made by a ‘free and capable testator’.

Second, to establish that the document is the last will, it must be established that the testator ‘knew and approved its contents at the time it was executed so that it can be said that the testator comprehended the effect of what he or she was doing’.

After these matters are proven the court will then presume the person who made the will was mentally competent.

The presumption of mental competence can be displaced by circumstances which raise a doubt as to the existence of this capacity.

Where those circumstances which raise a doubt about capacity are successfully established, the evidential burden shifts again to the person propounding the will – who then has to show that the testator was of ‘sound disposing mind’.

Without going into detail about the standard of proof required by the court for the proponent of the will to satisfy the burden of proof, it can be recognised that a claim before the court that challenges testamentary capacity can be complex and expensive.

What You can Do?

If you have reasons to be concerned with your own mental condition or you have experienced symptoms that impact on your mind, you should obtain a thorough diagnosis before you try to execute a will disposing of your estate.

The best evidence of your testamentary capacity comes from a qualified Psychiatrist specialising in this area.3

Going to these lengths of obtaining an expert medical assessment of your testamentary capacity is not necessarily required; particularly if you are a person of sound health and you continue to live a normal life and you are under regular medical supervision by a GP.

When the time comes for you to make a will, choose a lawyer who will understand and explain these issues to you and specifically one who can help you to ensure that there is adequate evidence of your capacity to execute your will and dispose of your estate as you wish.

If you have questions relating to wills, please do not hesitate to contact Havilah Legal on (08) 9221 2339 or book an appointment online at https://contact.havilahlegal.com.au/.

Daniel Rice is a Senior Associate at Havilah Legal and is experienced in Wills and Inheritance law. 

  1. Banks v Goodfellow (1870) LR 5 QB 549 at 565
  2. Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285
  3. Ideally a member of the Faculty of Psychiatry of Old Age.


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