Information Centre · Wills & Estate Planning
Can a Person With Dementia Make a Valid Will in Victoria?
A diagnosis of dementia neither proves nor disproves the capacity to make a Will. This concise Victorian guide sets out the current legal test, how capacity is assessed and what happens where a Will is challenged. General information only — not legal advice.
Key points
- A dementia diagnosis neither proves nor disproves testamentary capacity; capacity is decision-, document- and time-specific.
- The Banks v Goodfellow (1870) LR 5 QB 549 test requires that the will-maker understood the nature and effect of making a Will, the extent of the property, the claims of potential beneficiaries, and was not affected by a disorder of mind poisoning affections, perverting the sense of right or preventing the exercise of natural faculties in disposing of property.
- A duly executed and rational Will supports an ordinary presumption of capacity; where the evidence raises a real doubt the propounder bears the ultimate burden of satisfying the Court that the will-maker had capacity (see Bailey v Bailey (1924) 34 CLR 558).
- Medical evidence is relevant but not conclusive; contemporaneous instructions, file notes, prior and later clinical records, the Will's terms and lay evidence may all bear on capacity.
- The Supreme Court's affidavit-of-testamentary-capacity material is probate filing and evidence guidance; it does not create a universal legal requirement that a doctor examine every older or diagnosed will-maker before signing.
- Testamentary capacity is distinct from knowledge and approval, undue influence, suspicious circumstances, fraud or forgery, informal documents under section 9 of the Wills Act 1997 (Vic), statutory wills, and Part IV family provision.
Testamentary capacity is a legal question. It is decision-specific, document-specific and time-specific. A person with a dementia diagnosis may, on the evidence, have had capacity to make the particular Will in question; another person in apparently similar circumstances may not. This article summarises the current Victorian legal framework.
The Banks v Goodfellow test
The long-standing test comes from Banks v Goodfellow (1870) LR 5 QB 549. To make a valid Will the will-maker must, at the time the Will is executed:
- understand the nature and effect of making a Will;
- understand the extent of the property being disposed of;
- be aware of the persons who may have claims on the estate; and
- be free from any disorder of the mind that poisons the affections, perverts the sense of right, or prevents the exercise of natural faculties in disposing of property.
The elements are cumulative and are assessed against the particular Will actually made. Capacity for a complex Will involving trusts, blended-family arrangements or business interests may require a fuller understanding than a simple Will.
The evidentiary sequence
A duly executed Will that appears rational on its face carries an ordinary presumption that the will-maker had capacity. Where the circumstances raise a real doubt — for example, an established cognitive condition, sudden change of testamentary pattern or the involvement of a person who benefits — the person propounding the Will bears the ultimate burden of satisfying the Court that the will-maker had capacity when the Will was made. The challenger's role is to raise a real doubt on the evidence.
Medical and other evidence
Medical evidence about the person at the relevant time is often relevant, but no single form of evidence is decisive. Contemporaneous observations by the drafting solicitor, careful file notes, prior and later clinical records, the internal coherence of the Will, relationships and history, and lay evidence about the person's understanding may all matter. The Supreme Court of Victoria publishes affidavit-of-testamentary-capacity guidance for probate filings; that guidance addresses the evidence required for a contested probate application and does not, of itself, impose a rule that every older or diagnosed will-maker must be examined by a doctor before signing.
The 'Golden Rule' in context
The 'Golden Rule' — the practice of arranging a contemporaneous medical assessment and record — is a prudential guide, not a binding rule of Victorian law. Following it may strengthen the evidentiary record if a Will is later challenged; not following it does not invalidate a Will. Practical safeguards may include careful instructions, adequate note-taking, use of an independent witness where appropriate, and a properly structured signing appointment. These are options to consider, not prescriptions.
Related grounds of challenge
Testamentary capacity should not be confused with:
- Knowledge and approval — the will-maker must know and approve the contents of the Will as executed;
- Undue influence — coercion overbearing the will-maker's own judgement, which is a distinct and difficult ground to establish;
- Suspicious circumstances — a category that may sharpen the propounder's burden;
- Fraud or forgery;
- Informal-document applications under section 9 of the Wills Act 1997 (Vic);
- Statutory wills under Part 3 of the Wills Act; and
- Part IV family provision claims, which are a separate mechanism concerned with provision from the estate, not with the validity of the Will.
Probate outcomes
Where a Court is not satisfied of testamentary capacity for a Will, it may decline to pronounce for the instrument. An earlier valid Will may then govern the estate, or the intestacy rules may apply if there is no earlier valid Will. Where a person cannot give valid instructions, an application for a statutory Will under Part 3 of the Wills Act may be considered.
Statutory Wills
Part 3 of the Wills Act 1997 (Vic) permits the Supreme Court to authorise a Will for a person who lacks testamentary capacity, provided the statutory criteria are met. Statutory Will applications require careful evidence and are not appropriate in every situation.
Practical considerations
Where capacity is a live question, common practical steps include taking clear and separate instructions, checking the will-maker's understanding of the four Banks v Goodfellow elements against the particular Will, recording observations and any hesitation, using a witness who does not benefit, and considering whether contemporaneous medical evidence would materially strengthen the record. Different cases call for different combinations of safeguards.
Getting help
Our wills and estate planning team advises will-makers, families, executors and beneficiaries on testamentary capacity, Wills prepared in the context of dementia, statutory Will applications and probate disputes. Related guides include what is testamentary capacity and undue influence and testamentary capacity.
Frequently Asked Questions
Does a diagnosis of dementia mean a person cannot make a Will?
No. A diagnosis of dementia does not, of itself, prove or disprove testamentary capacity. Capacity is a legal question that is decision-specific, document-specific and time-specific. Some people at some stages of a dementing illness retain sufficient understanding for the particular Will they wish to make; others do not. Each case turns on the evidence about the person at the relevant time.
What is the legal test for testamentary capacity?
The long-standing test comes from Banks v Goodfellow (1870) LR 5 QB 549. The will-maker must understand the nature and effect of making a Will, understand the extent of the property being disposed of, be aware of the persons who may have claims on the estate, and be free from any disorder of the mind that poisons the affections, perverts the sense of right, or prevents the exercise of natural faculties in disposing of property. The four elements are cumulative and are assessed against the particular Will.
Who has to prove capacity?
The evidentiary sequence is settled. A duly executed Will that appears rational on its face carries an ordinary presumption of capacity. Where the circumstances raise a real doubt, the person propounding the Will bears the ultimate burden of satisfying the Court that the will-maker had capacity when the Will was made. It is not the case that a challenger always bears the ultimate burden.
Is a doctor's report always required?
Medical evidence about the person at the relevant time is often relevant, but it is not a universal legal requirement. Contemporaneous observations by the solicitor and others, file notes, prior and later clinical records, the terms of the Will, the relationships involved and other lay evidence may also matter. The Supreme Court of Victoria publishes affidavit-of-testamentary-capacity guidance for probate filings; that is guidance for evidence, not a general rule that a doctor must examine every will-maker before signing.
What is the 'Golden Rule'?
The so-called 'Golden Rule' — the practice of arranging a medical examination and record before an older or unwell will-maker signs — is a prudential guide, not a binding rule of Victorian law. Following it can strengthen the evidentiary record; not following it does not invalidate a Will. Practical safeguards should be described as options, not requirements.
Can capacity 'fluctuate' — is there a lucid interval?
Capacity is assessed as at the time of the Will. Where the evidence supports it, capacity can be found at that time even where the person's cognition varied at other times. A lucid interval cannot be assumed; it must be established on the evidence.
Do medication, guardianship or an attorney appointment prove incapacity?
No. Medication, age, place of residence, communication difficulty, an existing guardianship or administration order, or the appointment of an attorney under an enduring power of attorney are relevant background facts but do not establish testamentary incapacity by themselves. Capacity for one type of decision does not necessarily equate to capacity for a Will, and vice versa.
How is testamentary capacity different from other grounds of challenge?
Testamentary capacity is distinct from knowledge and approval of the Will's contents, undue influence, suspicious circumstances, fraud or forgery, informal-document applications under section 9 of the Wills Act 1997 (Vic), statutory wills, and Part IV family provision claims. Each ground has its own elements and consequences.
What happens if a Will is not admitted to probate?
Where a Court is not satisfied of testamentary capacity for a particular Will, the Court may decline to admit that Will to probate. An earlier valid Will may then govern the estate, or the rules of intestacy may apply if there is no earlier valid Will. The remedy is not usefully described as 'setting aside' the Will; the Court either pronounces for or against the instrument.
What is a statutory Will?
Under Part 3 of the Wills Act 1997 (Vic) the Supreme Court may authorise a Will for a person who lacks testamentary capacity, on application and where the statutory criteria are met. It is one option to consider where the person can no longer give valid instructions.
Wills & Estate Planning
Advice on testamentary capacity in Victoria.
Parke Lawyers advises will-makers, families, executors and beneficiaries on testamentary capacity, Wills prepared where dementia is a factor, statutory Wills and probate disputes.
This article is general information only and does not constitute legal advice. Please obtain advice tailored to your circumstances.