It is essential to validity of a will that, at the time it was made, the person making it had “testamentary capacity”.
In 1870, the test was stated in Banks v Goodfellow (1870) LR 5 QB 549, [565] by Cockburn CJ 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.”
More recently, Rich ACJ in Timbury v Coffee (1941) 66 CLR 277 at 280; 15 ALJR 159b held that the person making a will:
“must know what he is about, have sense and knowledge of what he is doing and the effect his disposition will have, knowledge of what his property was, and who those persons were that then were the objects of his bounty.”
This test has been broadly applied by the courts to the extent that they generally say that the standard of knowledge required of the person making a will, in understanding the nature and effects of their will, is wide, and operates at a general level of understanding only.
Whether the test is satisfied in a given case is often a complex enquiry of the facts and the medical evidence available.
Often, due to dementia, someone may not have the ability to be able to properly comprehend and appreciate the claims they ought to give effect to at the time of making a will late in life. Hence, the notes of the solicitor who takes the instructions for the will are often of great significance in recording whether there has been any discussion as to these matters with the deceased, in the course of giving instruction for a will.
In Tobin v Ezekiel; Estate of Lily Ezekiel [2011] NSWSC 81, Brereton J held at [25]:
“Extreme age, or grave illness, displaces a prima facie case of testamentary capacity only if the testator’s mental capacities are shown to have been so affected as to make him or her unequal to the task of disposing of his or her estate…”
I am happy to consider whether you have a claim to challenge a will because of a lack of testamentary capacity.
If you are an executor named in a will, and there is an assertion that the will is bad because of a lack of testamentary capacity, I am also happy to to advise you.
Please call me on 1300 431 895, or email me at justin@conomylegal.com to request an initial consultation.
