Testamentary Capacity is a term used to describe the mental and cognitive ability that a person who makes a will (known as a ‘will-maker’ or ‘testator’) must have at the time of making their will, in order for the will to be valid.

Defining Testamentary Capacity in NSW

Testamentary capacity requires a will-maker to be of sound mind, memory and understanding.

How to Establish Testamentary Capacity in NSW

Establishing testamentary capacity requires the Court to be satisfied that at the time of making their will, the testator:

1. Understood the nature of the testamentary act and its effects;
2. Understood the extent of the property of which they are disposing;
3. Comprehended and appreciated the claims to which they ought to give effect; and
4. Was not suffering a disorder of the mind or insane delusion at the time.

Understanding the nature of the testamentary act and its effects

The will-maker must intend for the document to dispose of their estate upon their death. This makes the document ‘testamentary’.

If the document disposes of property immediately, or at another time during the will-maker’s lifetime, the document will not be testamentary and the document will not be considered to be a will.

Understanding the extent of the property of which they are disposing

The testator must understand the extent of the property of which they are disposing.

However, this does not necessarily require the testator to be able to recall every single asset they hold. For example, it does not require a person to remember and recall every single shareholding in a complex or large share portfolio.

Comprehending and appreciating the claims to which they ought to give effect

The testator must be capable of making a reasoned judgement as to who should, or should not, benefit under the terms of the will.

This does not require the testator to have actually exercised an assessment of the claims, only the capability to do so if they choose.

Not suffering from any mental disorder of the mind or insane delusion

The testator must not be suffering from any mental disorder of the mind or insane delusion.

A mental disorder of the mind is not the same as a mental illness for the purpose of assessing testamentary capacity, and a person who has a mental illness (i.e., depression, bi polar disorder, schizophrenia) can still have testamentary capacity to prepare a valid will.

How do I challenge a will on the grounds of Testamentary Capacity?

If a Court is satisfied that a person lacked testamentary capacity at the time of making a will, the Court will determine the will to be invalid, and therefore a will made by a testator who may have lacked testamentary capacity at the time, may be challenged.

Claims are often brought by people who have been disinherited, either wholly or partly, in a later will, and who want the estate to be distributed under the terms of an earlier will.

A person seeking to bring a claim will usually notify the executor of the claim and if the dispute cannot be resolved through negotiations and mediation, the dispute may require a Court hearing.

Gather evidence: Working out what evidence helps your case

What evidence a person relies on depends on what evidence helps their case.

A claimant may often rely on the following evidence:

• The deceased’s medical records – where the testator had been diagnosed with dementia, Alzheimer’s disease, or any other mental or cognitive illness at or before, the date of the contentious will.
• The solicitor’s file notes – if these show the solicitor held concerns regarding testamentary capacity at the time of taking instructions for the contentious will.
• Any capacity assessment report held on the lawyers file – if it contains comments or findings which support a possible lack of testamentary capacity.
• Evidence from friends and family – if they witnessed a decline in the deceased’s mental and cognitive ability, at or before, the date of the contentious will.

An executor defending a claim may rely on the following:

• The deceased’s medical records – if they show there was no diagnosis of dementia, Alzheimer’s disease, or any other mental or cognitive illness at or before the date of the will.
• The solicitor’s file notes – if they show no concerns regarding testamentary capacity.
• Any capacity assessment report held on the lawyers file – if it shows the testator had capacity at the time of providing instructions.
• Evidence from friends and family – whose evidence shows the testator had no mental and cognitive disorder at or before the date of their will.

Evidence comes in many forms. It may already exist, or may need to be prepared. Empower Wills and Estate Lawyers are experienced in identifying and preparing evidence to support contentious probate proceedings.

Seek legal advice: How can experienced wills and estate lawyers help?

Challenging a will on the grounds of testamentary capacity can be a complex process and you should engage an experienced wills and estate lawyer to provide you with advice, negotiating, and if necessary, to prepare evidence to support your case.

File a claim in court: Who is responsible for commencing Court proceedings?

If you are advised that you have a claim, the lawyer will prepare the required documentation to commence the claim.

In some cases, the executor will be the party who is required to file the documents with the Court, but in other cases, you may need to. Your lawyer will be able to advise you on the requirements in your particular case.

Serve notice: Notifying other parties of the claim

If you are required to file documents with the Court, you will need to serve the documents or notices on other parties.

Attend court: Relying on documentary evidence and giving evidence from the witness box

Once originating documents are filed with the Court, the parties to the proceedings will need to attend Court. The Court will make administrative orders setting out the next steps, including a date for mediation, dates for the filing of evidence, and a date for the final hearing.

If the matter proceeds to a final hearing, if you have submitted evidence in the proceedings, you may be cross-examined by the other parties’ solicitor or barrister.

Wait for the Court’s decision: How long can a decision take?

After hearing the evidence, the Court will make a decision.

The decision may be handed down immediately, or may be reserved and be handed down at some time in the future, which can take several months, or even longer.

The Role of the Court in Determining Testamentary Capacity

If a matter proceeds to a final hearing, the Court will consider the evidence presented by both sides and determine whether the testator had testamentary capacity.

If the Court determines that the testator lacked testamentary capacity at the time they made the will, the Court will find that will to be invalid and will refuse probate for that will.

Where a Court finds a will invalid, the Court will “pass-over” the invalid will, and instead grant probate for an earlier valid will, or where there is no earlier valid will, grant letters of administration to the estate’s legal representative.

The estate will then be distributed under the terms of the earlier valid will, or the rules of intestacy.

Medical and Expert Evidence in Assessing Testamentary Capacity

The question of whether or not a person had testamentary capacity at the time they made their will is a legal question for the Court to determine. It is not for the solicitors or doctors to determine and whilst medical and expert evidence may assist the Court in its role the evidence is not conclusive.

Medical and expert evidence may arise at several points.

Firstly, medical and expert evidence may be found in a person’s medical records prepared by the person’s general practitioner or specialist treating physician during the person’s lifetime. For instance, each time they attended the doctors during their life. These documents may contain notes regarding relevant diagnoses and treatments. A party to a proceeding may attempt to obtain these documents to see if they assist their case.

Medical and expert records may also arise at or around the date of the will, if the will-drafting solicitor has doubts over the client’s testamentary capacity and requests the client to undertake a capacity assessment. A doctor will assess the client and give an opinion on whether the client has testamentary capacity. The solicitor should then maintain all notes and reports in the client file in case the will is challenged later.

Medical and expert evidence may also arise after the will-maker’s death once a dispute has arisen. Any party may engage a doctor to review the deceased’s contemporaneous medical history, solicitor file notes, capacity assessment report, and to provide their opinion on whether or not the will-maker had testamentary capacity.

Protecting the Interests of Incapacitated Individuals in Will-making

If a solicitor has doubts about a client’s testamentary capacity, they may request the client to attend a doctor to undertake a capacity assessment.

If the capacity assessment indicates that the client has testamentary capacity, the solicitor will be required to prepare a will even where the client’s testamentary dispositions seem ‘odd’ in the solicitor’s opinion. In these cases, the solicitor should take detailed file notes and maintain a copy of all medical reports on file in case the will is challenged later.

If the capacity assessment indicates that the client does not have testamentary capacity, the solicitor may, depending on the circumstances, still be required to prepare a will. The solicitor may themselves wish to seek legal advice at this stage.

If however a solicitor cannot obtain clear and cogent instruction from the client, the solicitor should cease acting in the matter.

Preventing Challenges to Your Will based on Testamentary Capacity

The best way to reduce the risk of your will being challenged is to engage an experienced wills and estate lawyer to prepare your will.

An experienced wills and estate lawyer will be able to apply their experience in assessing testamentary capacity, and if they hold doubts as to your testamentary capacity, they may request you to attend a doctor to undertake a capacity assessment.

An experienced will and estate solicitor will also be able to provide wider estate planning services to best protect your estate from claims, and advise you of other ways to best avoid your will being challenged.

Call Empower Wills and Estate Lawyers today for a free initial consultation.