What is Testamentary Capacity?

In order for a will to be valid, a testator must have testamentary capacity at the time the will was executed. The test for determining testamentary capacity is set out in the English case of Banks v Goodfellow (1870) LR 5 QB 549; namely that the testator must be of sound mind, memory and understanding to make a will.

Specifically the testator must:

  1. Understand the nature and effect of a will;
  2. Understand the nature and extent of the property they are disposing of under the will;
  3. Be able to comprehend and appreciate the claims to which they ought to give effect i.e. they must have an understanding of the potential beneficiaries who may have a moral claim upon their estate; and
  4. Not be suffering from any disorder of the mind.

Testamentary capacity does not mean that testator is required to remember each and every item of property they own, but they must have a general understanding of the assets that comprise their estate and who they want to leave them to. The degree of understanding required will vary depending on the complexity of the will itself, the testator’s assets and any moral claims on the testator. Generally speaking, the more complex the will, the greater the cognitive function required.

Presumption of Testamentary Capacity

Adults are presumed to have testamentary capacity. The South Australian Wills Act, 1936 provides that persons under the age of 18 can only make a will if they are or have been married or otherwise only with permission of the Supreme Court.

The Court will presume a testator has testamentary capacity, unless evidence is presented which challenges that presumption. Where such evidence is presented, the burden of proof then shifts onto the propounder of the will (usually the executor) to prove that the deceased had testamentary capacity

Challenging a Will on the Grounds of Testamentary Capacity

In an aging population, wills of older or vulnerable testators are increasingly being challenged on the basis of testamentary capacity. This is particularly relevant where the deceased signed a new will shortly before their death or in circumstances where they were very ill at the time of signing their will.

However, it is not only the wills of older testators that can be challenged on the grounds of testamentary capacity. Any medical condition that affects the mind including alcohol related mental illness, neurological or psychiatric disorders, personality disorders and suicide may give rise to a testamentary capacity challenge. Testators suffering from such conditions will not automatically be assumed to lack capacity and each case will turn on its own facts. Medical evidence on the severity of any illness and the extent to which it may have impaired the testator’s faculties will be imperative in determining whether they were of sound mind, memory and understanding when they made their will.

If you are concerned that a family member may not have had capacity at the time they wrote their will then you should take legal advice about the options open to you.

For further information please contact Michelle Crichton on 8362 6400 or email Michelle Crichton. Join our mailing list to receive updates and advice on current issues.

  • Michelle Crichton

    About the author: Michelle Crichton

    Michelle is a specialist lawyer in wills and estates, divorce and injury matters. She has a strong track record in achieving excellent results.

    Michelle's legal knowledge is excellent and she has a strong commitment to client service. She is fiercely protective of her client’s rights and works hard to ensure her clients receive the best outcome.

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