A person must have testamentary capacity at the time they make a Will. But what does that really mean and what happens if a Will is made without it?
What is testamentary capacity?
The term testamentary capacity means a willmaker’s aptitude/ability to make a Will or a codicil (a change to their current Will).
What does the law in Queensland say about testamentary capacity?
The law presumes that a willmaker has testamentary capacity when they make a Will. In order to prove that they didn’t, evidence that demonstrates a lack of requisite capacity when making their will must be shown to rebut this presumption. This can include medical evidence for example.
If it is believed that a willmaker lacked capacity to make their last Will, an application can be made to the Court challenging the validity of the Will. It is important to note that there are only certain people who are eligible to challenge a Will on the grounds that the deceased lack the capacity to make the Will. These eligible people are those who have an ‘interest’ in the estate being a beneficiary of any Will made by the deceased’s or anyone who might stand to be provided with a share of the deceased’s estate if they had died without a Will (known as dying intestate).
The test for testamentary capacity derives from the case of Banks v Goodfellow (1870). To summarise, in that case, the Court found that in order to make a valid Will, a willmaker must be able to:
- understand the nature and effect of the document being signed;
- understand the nature and extent of the assets that their estate comprises;
- understand the people who may have “moral claims” on the estate; and
- not be suffering from a disorder of the mind which would affect the willmaker making rational decisions about how to distribute their estate.
Challenging on ground of lack of testamentary capacity
If the Court finds that a Will is invalid because the deceased lacked the capacity to make the Will then, if the deceased had a prior Will, that Will may be resurrected and relied on as the last Will. However, the Court may find that the deceased lacked testamentary capacity for one or more prior Wills (if any exist). Ultimately, if there is no valid Will, the law of intestacy will apply to the deceased’s estate.
If you have concerns about a person’s Will and suspect that a willmaker did not have capacity to make a Will, you should seek legal advice to protect your rights and understand your options as soon as possible. For more information, please see our recent alert on Challenging a Will: Top 5 FAQs or contact our Estates and Succession Team.