If a will was made at a time when the deceased did not properly understand what they were doing, the people they ought to consider, or the nature of their estate, the will may be challenged. In NSW, lack of testamentary capacity is one of the recognised grounds for contesting the validity of a will in the Supreme Court of NSW.
This type of dispute often arises where the deceased was elderly, unwell, affected by dementia, suffering cognitive decline, taking strong medication, or heavily dependent on another person around the time the will was made.
Importantly, a lack of testamentary capacity claim is not the same as a Family Provision Claim. A family provision claim argues that the will is valid, but inadequate provision was made for an eligible person. A testamentary capacity challenge argues that the will itself may be invalid.
What is testamentary capacity?
Testamentary capacity is the legal capacity required to make a valid will.
The traditional test comes from the English case of Banks v Goodfellow, which continues to be applied in NSW. In practical terms, a person making a will should generally be able to:
- understand that they are making a will and the effect of doing so;
- understand, in a general way, the nature and extent of their assets;
- understand the people who may have a moral claim on their estate, such as spouses, children or other dependants; and
- not be affected by a mental disorder or delusion that influences the way they dispose of their estate.
The Supreme Court has continued to recognise Banks v Goodfellow as the classic test for testamentary capacity.
When can lack of testamentary capacity become an issue?
Lack of testamentary capacity may become an issue where there are concerns about the deceased’s mental state at the time the will was made.
Common warning signs include:
- the deceased had dementia, Alzheimer’s disease or cognitive impairment;
- the will was made shortly before death;
- the will made a sudden or unexplained change from previous wills;
- a close family member was unexpectedly excluded;
- the deceased was isolated from family members;
- the deceased was dependent on the main beneficiary;
- the deceased was in hospital, aged care or palliative care when the will was signed;
- the will was prepared in unusual circumstances;
- the deceased appeared confused, forgetful or vulnerable around the time of signing.
The existence of dementia or illness does not automatically mean a will is invalid. The key question is whether the deceased had the required capacity at the time the will was made.
A person may have good days and bad days. They may also have a diagnosis but still retain sufficient understanding to make a valid will. Each case depends on the evidence.
Lack of capacity is not always obvious
One of the difficulties in these cases is that the deceased is no longer alive to give evidence.
The Court must look at the surrounding circumstances and available records to determine whether the deceased had capacity when the will was made. This often involves reviewing medical records, solicitor file notes, hospital records, aged care records, witness evidence and the circumstances surrounding the preparation and execution of the will.
The issue is usually not whether the deceased was elderly or unwell. The issue is whether they understood the essential matters required to make a valid will.
Examples of circumstances that may support a challenge
A challenge may be stronger where there is evidence that the deceased:
- did not understand the size or nature of their estate;
- forgot about major assets;
- failed to recognise close family members;
- believed things that were plainly false;
- was suffering from paranoia, confusion or delusions;
- could not explain why they were changing their will;
- gave instructions that were inconsistent or irrational;
- was unable to communicate their wishes clearly;
- was being directed by another person;
- signed a will that did not reflect their long-standing intentions.
For example, if a parent had always intended to divide their estate equally between their children, but shortly before death signed a new will leaving everything to one child, and medical records show significant cognitive decline at that time, there may be grounds to investigate whether the new will is valid.
Who can challenge a will for lack of testamentary capacity?
A person who challenges a will must have a sufficient interest in the estate.
This may include:
- a beneficiary under an earlier will;
- a person who would benefit if the deceased died intestate;
- an executor named in an earlier will;
- a person whose entitlement is affected by the disputed will.
For example, if an earlier will left the estate equally to three children, but a later will left everything to one child, the excluded children may have standing to challenge the later will.
What happens if a will is found to be invalid?
If the Court finds that the deceased lacked testamentary capacity when making the will, that will may be declared invalid.
The estate may then be distributed according to:
- an earlier valid will, if one exists; or
- the rules of intestacy, if there is no earlier valid will.
This can significantly change who receives the estate.
For example, if a later will leaves everything to one person but is set aside, an earlier will may be admitted to probate instead. Alternatively, if there is no valid earlier will, the estate may pass under intestacy laws.
How do you challenge a will before probate is granted?
If probate has not yet been granted, a person with an interest in the estate may be able to file a probate caveat.
A probate caveat can prevent a grant of probate being made while the dispute is investigated. This can be important because once probate is granted, the executor may begin administering the estate.
A caveat should not be filed lightly. It should generally only be filed where there is a proper basis to question the validity of the will.
Can you challenge a will after probate has been granted?
Yes, it may still be possible to challenge a will after probate has been granted, but it can be more complicated.
If probate has already been granted, it may be necessary to seek orders revoking the grant. The longer the delay, the more difficult the matter may become, particularly if the estate has already been distributed.
For this reason, anyone concerned about testamentary capacity should obtain advice as soon as possible.
What evidence is important in a testamentary capacity dispute?
Evidence is critical in these cases.
Relevant evidence may include:
Medical records
Medical records are often central. These may include GP records, hospital records, specialist reports, aged care notes, cognitive assessments and medication records.
Records close to the date the will was signed are usually particularly important.
Solicitor file notes
If a solicitor prepared the will, their file may contain notes of the deceased’s instructions, observations about capacity, correspondence, drafts and attendance notes.
Good solicitor notes can be powerful evidence. Poor notes, or a lack of notes, may create uncertainty.
Witness evidence
Family members, friends, carers, neighbours and professionals may be able to give evidence about the deceased’s behaviour, memory, confusion, independence and relationships.
Earlier wills
Earlier wills can be important because they may show the deceased’s long-standing intentions.
A sudden change from previous wills does not automatically prove lack of capacity, but it may raise questions, especially where the change is unexplained or inconsistent with the deceased’s relationships.
The circumstances of the will signing
The Court may consider who arranged the will, who gave instructions, who was present, who benefited, and whether the deceased had independent advice.
What is the difference between lack of capacity, undue influence and suspicious circumstances?
These concepts often overlap, but they are different.
Lack of testamentary capacity focuses on whether the deceased had the required mental capacity to make a will.
Undue influence focuses on whether someone pressured or coerced the deceased into making the will.
Suspicious circumstances may arise where the circumstances surrounding the will create doubt about whether the deceased knew and approved of its contents. The Supreme Court of NSW has recognised the relationship between suspicious circumstances, undue influence and testamentary capacity in probate disputes.
In some cases, a will dispute may involve more than one issue. For example, an elderly person with cognitive decline may have made a will in favour of the person who arranged the appointment, gave instructions to the solicitor and isolated the deceased from other family members.
Does a dementia diagnosis automatically invalidate a will?
No.
A dementia diagnosis does not automatically mean that a person lacks testamentary capacity.
The question is whether the person had sufficient capacity at the time the will was made. Some people with dementia may still be capable of making a valid will, particularly in the earlier stages of the condition.
However, a dementia diagnosis may be highly relevant, especially if there is evidence of confusion, memory loss, impaired reasoning or inability to understand important matters at the time the will was signed.
What if the deceased had a “lucid interval”?
A person who generally suffers from cognitive impairment may still have periods where they are more alert and capable. This is sometimes referred to as a lucid interval.
If the will was made during a lucid interval, it may still be valid. However, the person propounding the will may need to rely on evidence showing that the deceased had sufficient understanding at the relevant time.
This is why records from the exact period around the will signing can be so important.
Who has to prove testamentary capacity?
In probate proceedings, the person seeking to uphold the will generally needs to satisfy the Court that the will is valid.
Where a will appears regular and was properly executed, there may be a presumption that the deceased had capacity. However, if there is sufficient evidence raising doubt about capacity, the person seeking probate may need to prove that the deceased had testamentary capacity.
This is a complex area, and the outcome will depend heavily on the facts and evidence.
Should you obtain the deceased’s medical records?
In many cases, yes.
Medical records can assist in determining whether there is a proper basis to challenge the will. They may show diagnoses, cognitive testing, hospital admissions, medication, confusion, delirium, dementia, depression or other issues relevant to capacity.
However, medical records need to be interpreted carefully. A note that a person was “confused” does not necessarily mean they lacked testamentary capacity. Similarly, a note that a person was “alert” does not necessarily prove they had capacity to make a will.
How long do testamentary capacity disputes take?
The timeframe depends on the complexity of the estate, the strength of the evidence and whether the matter can be resolved early.
Some disputes resolve after documents are exchanged and the parties receive advice about the risks. Others require contested probate proceedings in the Supreme Court of NSW.
Factors that may affect timing include:
- whether probate has already been granted;
- how quickly medical records can be obtained;
- whether the solicitor’s will file is available;
- whether expert medical evidence is required;
- the number of parties involved;
- whether the matter can be mediated.
Can these disputes settle?
Yes.
Many estate disputes resolve by negotiation or mediation. Settlement may be appropriate where there are litigation risks for all parties, uncertainty in the evidence, or a desire to avoid the cost and delay of a hearing.
However, because a testamentary capacity dispute concerns the validity of the will, settlement needs to be approached carefully. The parties should obtain legal advice before agreeing to any compromise.
Why legal advice is important
Challenging a will for lack of testamentary capacity can be complex and evidence-heavy.
It is important to obtain advice early because steps may need to be taken quickly to protect your position, especially if probate has not yet been granted or if the estate may soon be distributed.
A lawyer experienced in estate litigation can help you assess:
- whether there are proper grounds to challenge the will;
- whether a probate caveat should be filed;
- what documents and records should be obtained;
- whether the evidence supports a capacity challenge;
- the likely risks, costs and prospects of success;
- whether the matter may be suitable for early resolution.
Conclusion
Challenging a will for lack of testamentary capacity is not straightforward. These claims often turn on detailed medical records, solicitor file notes, witness evidence and the circumstances surrounding the making of the will.
If you are concerned that a loved one’s will was made when they lacked capacity, it is important to obtain advice early. Delay can make it harder to protect your position, particularly if probate has already been granted or the estate is being administered.
At PB Ritz Lawyers, we specialise in will disputes and contested estates in NSW. We can review the circumstances, explain your options, and advise whether there may be grounds to challenge a will.
If you have concerns about the validity of a will, call us on (02) 8066 9990 or send us an email at mail@pbritz.com.au to obtain a free case assessment.
