The Test for Testamentary Capacity in Wills

Once a Will is executed in accordance with the Succession Act 2006 (NSW) the Executor named in it is entitled to seek Probate of that Will.  However, in some circumstances, a challenge may be made to the capacity of the Testator to make a valid Will.

Challenges of this nature are becoming more common with old age, the existence of guardianship and financial management orders, drug or other alcohol addiction and the scourge of Dementia in an ageing society.

The Courts in NSW have historically required compelling evidence of lack of capacity before making a finding which might be adverse to the wishes of a deceased person set out in their Will. 

The recent case of Carr v Homersham (2018) expressed, in general terms, the relative elements to be considered by the Court if testamentary capacity is challenged.  In summary, those elements are:

  • The Testator must have appreciated fully the extent of his or her assets which are the subject of the Will;
  • The Testator must have understood the importance of making the Will and the effect that it may have on his or her estate;
  • The Testator must have been able to consider and otherwise understand the nature of potential beneficiaries in a claim by those persons both legally and morally to the Testator’s estate;
  • The Testator must not have been suffering from any condition which would interfere with his or her normal decision-making process;

Very importantly, each of the above elements need to be examined by the Judge hearing such a case.  The Testator must have had capacity at the time the Will was signed.

Within these judicial guidelines, each case will be determined on its own facts and circumstances.  There are a number of Court Decisions favourable to challenges and a large number unfavourable.  His Honour Chief Justice Gleeson in 1985 in the case re Estate Griffith made the following comment:

“testamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards.  A person may disinherit the child for reasons that would shock the conscience of most ordinary members of the community, but that does not make the Will invalid”

If you are involved in an estate, whether as a beneficiary, executor or otherwise, and there is a challenge to the testamentary capacity of the deceased Will maker, we can give advice in this area.  Our role is to consider the facts and circumstances of each particular case and then give you advice on any questions that you may raise in relation to issues of testamentary capacity.

For advice in this area, please make an appointment with:


back to top

The Chambers

51 Croydon Street

Cronulla NSW 2230

t (02) 9523 6111

f (02) 9523 0785

PO Box 61 Cronulla 2230