Challenging Testamentary Capacity in Victoria

What Testamentary Capacity Means

Testamentary capacity is the legal and mental ability to make a valid Will. It is not a general test of intelligence, education or business acumen. A person can lack capacity to manage their day-to-day affairs and still have testamentary capacity for a simple Will. Conversely, a person who is otherwise capable can lack capacity if, at the precise moment the Will is made, they do not understand what they are doing.

The test is specific to Wills. It does not require the will-maker to remember every asset, every relative, or every consequence of their decisions. But it does require a sufficient understanding of the nature of the act, the property being disposed of, the people who might reasonably expect to benefit, and the claims they are excluding.

The Banks v Goodfellow Test

The governing test in Victoria comes from the English case of Banks v Goodfellow (1870). It requires four things:

1. Understanding the nature of the act. The will-maker must understand that they are making a Will — a document that disposes of their property after death — and what that means.
2. Knowing the extent of their property. They must have a reasonable understanding of what they own. They do not need to know the exact value of every asset, but they must know the general nature and extent of their estate.
3. Comprehending the claims of potential beneficiaries. They must understand who might reasonably expect to benefit and the claims they are leaving out. This includes spouses, children, dependants and others with a moral claim on the estate.
4. Freedom from a disorder of the mind. They must not be suffering from a disorder of the mind or delusion that poisons their affections, perverts their sense of right, or prevents the exercise of their natural faculties in disposing of their property by Will.

The test is applied at the time the Will is made. A person who lacked capacity before the Will was signed, or who lost capacity immediately after, may still have made a valid Will if they satisfied the test at the moment of execution.

Dementia and Capacity

Dementia is the most common medical condition raised in Victorian capacity challenges. But a diagnosis of dementia — even a diagnosis of Alzheimer's disease — does not automatically mean a person lacks testamentary capacity.

The question is always whether the will-maker had the specific understanding required by Banks v Goodfellow at the time the Will was made. A person with moderate dementia may have lucid intervals during which their understanding is intact. A person with early dementia may understand their property and their family perfectly well, even if their short-term memory for recent events is poor.

The medical evidence must be tied to the legal test. A report that simply states "the deceased had dementia" is not enough. The evidence must address whether the dementia affected the specific cognitive functions required for testamentary capacity at the relevant time.

Alzheimer's Disease and Will-Making

Alzheimer's disease presents particular challenges because its progression is variable and its effects on cognition are not uniform. In the early stages, a person may retain the ability to understand their property, their family relationships and the effect of a Will. In the middle stages, they may retain capacity for a simple Will but not for a complex one involving testamentary trusts, multiple beneficiaries or significant departures from previous intentions.

The complexity of the Will matters. A simple Will leaving everything to a surviving spouse may require less cognitive capacity than a Will that establishes discretionary trusts, excludes adult children, or makes significant charitable bequests. The court assesses capacity in light of the will-maker's instructions, not in the abstract.

Medical Evidence

Contemporaneous medical records are the most important evidence in a capacity challenge. General practitioner notes, specialist reports, hospital records, medication charts and nursing home observations all carry weight. The court looks for evidence of:

• the will-maker's mental state around the time the Will was made;
• any diagnosis of cognitive impairment, dementia or psychiatric illness;
• medication that might have affected cognition or judgment;
• observations by treating doctors, nurses and carers about the will-maker's understanding and behaviour;
• any assessment of capacity conducted before or after the Will was signed.

The absence of medical evidence can also be significant. If the will-maker was regularly seen by a GP who made no notes about cognitive decline, that may support the conclusion that capacity was present.

Solicitor File Notes

The solicitor who prepared the Will is often a central witness. Their file notes, attendance notes, drafts and correspondence can provide direct evidence of the will-maker's instructions, their understanding of the Will's effect, and any concerns the solicitor had about capacity.

Best practice for solicitors taking instructions from elderly or unwell clients includes:

1. recording the client's instructions in detail, in their own words where possible;
2. noting any observations about the client's understanding, memory or demeanour;
3. asking open questions to confirm the client understands the nature and effect of the Will;
4. considering whether a medical assessment of capacity is warranted before execution;
5. ensuring the Will is read and explained to the client before signing;
6. having the Will witnessed by independent adults who can attest to the client's apparent understanding.

Where the solicitor's file is thin, or where the solicitor was also a beneficiary or acted under instructions from a beneficiary, the court may scrutinise the Will more closely.

Retrospective Expert Evidence

Where contemporaneous medical evidence is limited, parties often rely on retrospective expert assessments. A geriatrician, psychiatrist or neuropsychologist reviews the available records and offers an opinion about whether the will-maker likely had capacity at the relevant time.

Retrospective opinions are inherently less reliable than contemporaneous assessments. The expert did not examine the will-maker and must rely on incomplete records. The court treats such evidence cautiously, particularly where the expert has not addressed the specific legal test or where their opinion is contradicted by primary evidence such as solicitor file notes or witness observations.

Suspicious Circumstances

Suspicious circumstances are facts or events that raise a doubt about whether the will-maker truly knew and approved of the Will's contents. They are not a separate ground of challenge — rather, they affect the burden of proof and the cogency of the evidence required to uphold the Will.

Common suspicious circumstances include:

• the Will was prepared by a beneficiary or their associate;
• the will-maker was isolated from family, friends or independent advisers;
• there were rushed or last-minute changes shortly before death;
• the will-maker was physically frail, dependent on the beneficiary, or under their care;
• the Will departs sharply from previous testamentary intentions without explanation;
• the will-maker was unable to read or understand the Will before signing.

Where suspicious circumstances are established, the burden shifts to the person propounding the Will to prove that it represents the will-maker's true intentions. That burden is discharged by cogent evidence, not merely by the formal validity of the document.

Who Bears the Burden of Proof

In the ordinary case, the executor or beneficiary who seeks to uphold the Will bears the burden of proving that the will-maker had testamentary capacity and that the Will was made with knowledge and approval. The standard of proof is the balance of probabilities.

Where suspicious circumstances exist, the burden becomes more demanding. The propounder must lead evidence that dispels the suspicion and satisfies the court that the Will is authentic.

If undue influence is alleged, the person making the allegation bears the burden of proving coercion. Undue influence requires more than persuasion, family pressure or emotional appeals. It requires coercion that overbore the will-maker's free will to the point where the Will no longer reflects their true intentions. The burden is heavy and the evidence is often circumstantial. For a fuller treatment of how these claims are run alongside capacity challenges, see our guide to undue influence and suspicious circumstances in Victorian will disputes.

Caveats and Urgent Steps

If a Will's validity is in doubt and a grant of probate has not yet issued, the first protective step is often a probate caveat. A caveat lodged with the Probate Office of the Supreme Court of Victoria prevents the grant from issuing without notice to the caveator, buying time to investigate the capacity concern and, if appropriate, bring proceedings.

Caveats must be lodged with proper grounds. A caveat based on a general suspicion of incapacity, without a genuine basis to investigate, can expose the caveator to a costs order. Legal advice should be obtained before lodgement.

If the grant has already issued, different procedures apply. A proceeding to revoke the grant or to propound an earlier Will must be commenced within the relevant limitation period. The evidence must be gathered quickly — medical records are archived, solicitor files are moved, and witnesses' memories fade.

For an overview of the time limits that apply to family provision claims, see our article on time limits for TFM claims in Victoria.

Costs Risks

Costs are a central strategic consideration in capacity challenges. The Supreme Court of Victoria applies the ordinary principle that costs follow the event. A person who challenges a Will unsuccessfully may be ordered to pay the costs of the executor and the beneficiaries who defended it. A person who propounds a Will that is ultimately found invalid may be ordered to pay the costs of the successful challenger.

The court has discretion to vary the usual costs order in light of the parties' conduct, the complexity of the evidence, and whether the challenge was brought on reasonable grounds. But the risk of an adverse costs order is real and should be assessed before proceedings are commenced.

Early advice about the strength of the evidence, the likely costs exposure, and the strategic options — including mediation and settlement — is essential.

Practical Guidance for Executors and Beneficiaries

If you are an executor and the Will's validity is challenged:

1. Do not distribute the estate. Distribution before the challenge is resolved can expose you personally if the Will is set aside.
2. Secure the original Will and solicitor file. These are the primary evidence. Ensure they are safe and accessible.
3. Obtain independent legal advice. Your duty is to the estate and all beneficiaries, not just those who benefit under the Will being challenged.
4. Preserve medical records. Obtain the will-maker's medical records promptly — they are often the decisive evidence.
5. Consider mediation. Most capacity disputes settle. A mediated outcome avoids the cost, delay and family damage of a final hearing.

If you are a beneficiary who believes a Will is invalid:

1. Act quickly. Evidence degrades. The sooner you investigate, the stronger your position.
2. Obtain the Will and any earlier Wills. Comparison between Wills is often illuminating.
3. Speak to the solicitor who prepared the Will. Their file notes and recollections may be decisive.
4. Consider a caveat. If probate has not issued, a caveat is the most effective protective step.
5. Be realistic about costs. Capacity challenges are expensive. The strength of the evidence, the size of the estate and the costs exposure should all be weighed before proceedings are commenced.

Our probate and estate administration team assists executors with validity challenges, and our estate litigation team acts for beneficiaries who believe a Will does not reflect the will-maker's true intentions.

For a broader overview of the firm's estate litigation work, see our pillar guide on estate litigation lawyers in Melbourne. Related articles include our guides to family provision claims, removing or replacing an executor, and executor disputes.

Frequently Asked Questions