Lack of capacity is often used to challenge a Will and is based on a reasonable belief that a testator lacked the requisite mental capacity to execute a Will, often referred to as ‘testamentary capacity’.

There is no single legal definition of capacity and the legal definition depends in each case on the type of decision which is being made or the type of transaction that is involved. This means there are a variety of legal tests of capacity, some of which are contained in legislation such as the Guardianship Act and others which have been developed in common law (case law), such as the test for testamentary capacity.

These diverse tests regarding legal capacity mean that a client may have the capacity to make some decisions, such as being able to decide some financial transactions but otherwise being unable to make other types of decisions.

A finding of incapacity in relation to particular things or areas (such as health care needs) does not automatically mean that person’s capacity is lacking in another area (such as financial needs). This has really been highlighted by the Supreme Court, which has formerly found that a person incapable of managing their financial affairs may still be capable of making a Will.[1]

Despite the varying legal tests for capacity, the fundamental issue is whether the person can:

• understand the facts involved in the decision-making and the main choices that may be available to them

• weigh up the consequences of their choices and understand how the consequences affect them and their needs

• effectively communicate their decision[2]

The formula for determining testamentary capacity is summarised well in the judgment of the Court (see Cockburn CJ, Blackburn, Mellor, and Hannen JJ) delivered by Sir Alexander Cockburn in Banks v Goodfellow 1870 LR 5 QB 549 at 565 as follows:

“It is essential to the exercise of such a power that a testator 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.”

Generally, where a person may have difficulty demonstrating these basic things, then it warrants further investigation. There are also general ‘red flags’ that point to the need for further investigation, but they are not exhaustive and should not be used as grounds for a definite diagnosis. These can include the testator:

• memory loss

• early or progressed onset of dementia

• having difficulty with communication

• having difficult calculating the nature of a specific gift

• not being able to understand the extent of their assets

• being regularly hospitalised or otherwise needing extensive care

• giving instructions in an aged care facility or in the hospital

• passing away within a short time prior to the making of the Will

• being accompanied by family, and the family members helping them answer questions from a solicitor

• being unable to repeat advice or otherwise being unable to recall information being provided

If a testator does not meet the varying limbs of the general test, it is likely that they did not have testamentary capacity to make a Will.

In order to challenge a Will on grounds of lack of testamentary capacity, the complainant will need to show the court that there is doubt that the deceased person had the required basic criteria.

In proceeding involving an argument over testamentary capacity, it is prudent to gather evidence to support their allegation, which often includes:

• Obtaining a copy of a solicitors file, including file notes, statements and other records that may be held in relation to when the Will was drafted

• Obtaining medical records

• Obtaining witness statements

• Obtaining anecdotal evidence such as statements from people who were involved in the health care of the testator or alternatively someone who observed their conduct at or around the time of drafting the Will

---

[1] Re Estate of Margaret Bellew [1992] NSW Supreme Court, Probate Division (Unreported) McLelland J, 13 August 1992.

[2] Jenna MacNab, “Capacity: A practical guide for lawyers” (2008),46 No.5 LSJ 68 at 71.