Information Centre · Contested Wills & TFM Claims
Undue Influence vs Lack of Testamentary Capacity: What's the Difference?
Lack of testamentary capacity and undue influence are separate grounds on which the validity of a Will may be attacked in the probate jurisdiction of the Supreme Court of Victoria. Each has its own test, evidentiary burden and remedy.
Whether a Will is valid depends on the specific issues raised and the evidence in the individual case
Key points
- Lack of testamentary capacity and probate undue influence are distinct grounds for challenging the validity of a Will in the probate jurisdiction of the Supreme Court of Victoria.
- Capacity is assessed by reference to Banks v Goodfellow (1870) LR 5 QB 549 and concerns the Will-maker's own mental ability at the time of execution.
- Probate undue influence requires proof of coercion overbearing the Will-maker's free volition; persuasion, opportunity, dependence, involvement or an unequal disposition is not, of itself, proof.
- There is no presumption of undue influence in the probate jurisdiction; the party alleging it bears the onus of affirmative proof.
- Knowledge and approval, fraud, forgery and family provision under Part IV of the Administration and Probate Act 1958 (Vic) are separate inquiries with their own tests and remedies.
- Whether the evidence supports any ground is fact-specific and turns on the material available in the individual case.
A challenge to the validity of a Will in Victoria can be brought on several distinct grounds. Two of them — lack of testamentary capacity and probate undue influence — are conceptually separate and are decided by reference to different legal tests and different evidentiary rules. This article sets out each ground, distinguishes it from related concepts such as knowledge and approval, suspicious circumstances, fraud or forgery and family provision, and describes the remedies available in the probate jurisdiction. It is general information only and is not legal advice.
Testamentary Capacity
Testamentary capacity is assessed by reference to the test in Banks v Goodfellow (1870) LR 5 QB 549, which remains the governing test in Victoria. To have capacity at the moment the Will is executed, the Will-maker must:
- understand the nature and effect of making a Will;
- understand, in general terms, the extent of the property being disposed of;
- comprehend and appreciate the claims to which they ought to give effect; and
- not be suffering from any disorder of the mind or insane delusion that influences the disposition.
The four elements are considered together and applied to the specific instrument. Capacity is decision-specific and time-specific. A person may have capacity to make a straightforward Will while lacking capacity to make a complex one. Age, a diagnosis of dementia, illness or medication neither automatically proves nor disproves capacity; the question is what the evidence shows about the Will-maker's understanding at the moment of execution.
Probate Undue Influence
Undue influence in the probate jurisdiction requires proof of coercion — pressure of a kind and degree that overbore the free volition of the Will-maker so that the instrument does not represent their own testamentary intentions. The classic formulation, drawing on Wingrove v Wingrove (1885) 11 PD 81 and consistently applied in Australia (see, for example, Nicholson v Knaggs [2009] VSC 64; Boyse v Rossborough (1857) 6 HLC 2), is that persuasion, advice or appeals to affection are not enough. The pressure must be such that the Will-maker was, in substance, made to do what they did not wish to do.
There is no presumption of undue influence in the probate jurisdiction analogous to the equitable presumption that can arise in some inter vivos transactions between parties in a relationship of influence. In probate, the party alleging undue influence bears the onus of affirmative proof on the balance of probabilities. Opportunity to influence, a relationship of trust or dependence, involvement in arrangements for the Will, and a disposition that appears unequal or surprising are matters that may be relied on as circumstantial evidence, but none of them, alone or in combination, is proof of coercion.
Knowledge and Approval; Suspicious Circumstances
A separate ground for refusing probate is want of knowledge and approval — that is, the Will-maker did not know and approve the contents of the document propounded. Where the circumstances surrounding execution excite the suspicion of the Court, the propounder must dispel that suspicion by affirmatively proving that the Will-maker knew and approved the contents. Circumstances that may excite suspicion include a substantial benefit to a person who was closely involved in giving instructions or arranging execution. This inquiry is distinct from undue influence: it is directed to knowledge, not to coercion.
Fraud and Forgery
Fraud and forgery are separate probate grounds. Fraud requires proof that the Will-maker was misled by a false representation into making the disposition. Forgery requires proof that the signature or document is not genuine. Each must be pleaded specifically and proved by evidence directed to those issues.
Family Provision Is a Separate Jurisdiction
A family provision claim under Part IV of the Administration and Probate Act 1958 (Vic) assumes that the Will is valid. It asks the Court to order provision out of the estate for an eligible person for whom the deceased failed to make adequate provision for proper maintenance and support. Validity challenges (capacity, undue influence, knowledge and approval, fraud, forgery) belong to the probate jurisdiction and operate on different tests and remedies.
Distinguishing Capacity from Undue Influence
| Issue | Lack of Testamentary Capacity | Probate Undue Influence |
|---|---|---|
| Focus | The Will-maker's mental ability at execution. | Coercion applied by another person that overbore free volition. |
| Governing test | Banks v Goodfellow. | Actual coercion overbearing free will (Wingrove; Nicholson v Knaggs). |
| Onus | Propounder proves due execution, knowledge and approval and capacity; the presumption of capacity is displaced where a real doubt is raised. | Party alleging undue influence bears the onus of affirmative proof; there is no presumption. |
| Evidence that may be relevant | Contemporaneous medical records, the drafting solicitor's file, evidence from those who observed the Will-maker at the relevant time. | Evidence directed to the alleged coercion, including the conduct of the alleged influencer, the circumstances of preparation and execution, and the Will-maker's ability to resist. |
Evidence Is Fact-Specific
The weight given to any category of evidence depends on the issues and the whole of the material. Categories that may be relevant include:
- contemporaneous medical records, including GP notes, hospital and specialist records, and any capacity assessment prepared at the relevant time;
- the drafting solicitor's file — the instructions recorded, questions asked, persons present, and any capacity or knowledge-and-approval considerations addressed;
- evidence from those who observed the Will-maker at the relevant time, including family members, friends, carers and treating clinicians;
- earlier Wills and instructions, and the reasons (if any) given for departing from a previous testamentary pattern; and
- the terms of the disputed instrument and how they relate to the Will-maker's known circumstances.
No item in that list, alone, decides any of the grounds. Whether the evidence supports refusal of probate is a matter for the Court on the whole of the material and the specific issues raised.
Probate Remedies
Where a validity challenge succeeds in whole or in part, the Court may refuse a grant, pronounce against the instrument, or admit an earlier valid Will. The operative distribution then depends on any earlier valid Will and, failing that, on the intestacy provisions in Part IA of the Administration and Probate Act 1958 (Vic). These probate outcomes are separate from any relief that might be granted in a family provision proceeding under Part IV of the same Act. For related material, see our articles on testamentary capacity and challenging testamentary capacity in Victoria.
Practical Steps If Concerns Arise
- Act promptly. Concerns about validity are best raised before a grant issues; caveat procedures under the Supreme Court (Administration and Probate) Rules 2023 may be relevant.
- Preserve documents. Earlier Wills, instructions, correspondence and personal records may be material.
- Identify sources of evidence. Medical records, drafting solicitor's file and witnesses to the Will-maker's condition and circumstances at the relevant time.
- Obtain advice. Whether the available evidence supports a validity challenge, a family provision claim, both or neither depends on the specific facts and applicable law.
Conclusion
Lack of testamentary capacity and probate undue influence are distinct grounds with distinct tests and evidentiary burdens. They may be pleaded in the alternative, together with knowledge and approval, fraud or forgery, but each must be separately made out on the evidence. Whether any ground is available in a particular estate is a matter for legal advice on the individual facts.
Frequently Asked Questions
Are undue influence and lack of testamentary capacity the same thing?
No. They are distinct grounds on which the validity of a Will may be attacked in the probate jurisdiction of the Supreme Court of Victoria. Capacity concerns the Will-maker's own mental ability at the time the Will was executed, assessed by reference to Banks v Goodfellow (1870) LR 5 QB 549. Probate undue influence concerns coercion by another person that overbore the Will-maker's free volition, so that the document does not record the Will-maker's own testamentary intentions.
What must be proved to establish probate undue influence?
Coercion. The propounder of the earlier position must show, on the balance of probabilities, that the Will was executed as a result of pressure that overbore the free volition of the Will-maker. Persuasion, advice, moral pressure, opportunity, dependence, involvement in preparing the Will, or a distribution that appears unequal is not by itself proof of undue influence. There is no presumption of undue influence in the probate jurisdiction equivalent to the equitable presumption that can arise in inter vivos transactions.
What is the Banks v Goodfellow test?
A Will-maker has testamentary capacity if, at the time of executing the Will, they understand the nature and effect of making a Will, understand in general terms the extent of the property they are disposing of, comprehend and appreciate the claims to which they ought to give effect, and are not suffering from any disorder of the mind or delusion that influences the disposition. The four elements are considered together and applied to the specific document in question.
Who bears the burden of proof?
The party propounding the Will bears the ultimate onus of proving due execution, knowledge and approval, and testamentary capacity. Where the Will is rational on its face and duly executed, an ordinary presumption of capacity arises. If a party seeking to displace that presumption raises a real doubt on the evidence, the propounder must affirmatively satisfy the Court that the Will-maker had capacity. Probate undue influence must be affirmatively proved by the party alleging it; it is not presumed.
What remedies does the Supreme Court of Victoria have?
In the probate jurisdiction, the Court may grant or refuse probate in solemn form, pronounce against the Will or a part of it, or admit an earlier valid Will. If the challenged instrument is not admitted, the operative distribution depends on any earlier valid Will and, failing that, the intestacy provisions in Part IA of the Administration and Probate Act 1958 (Vic). These probate remedies are distinct from a family provision claim under Part IV of that Act.
How does undue influence differ from suspicious circumstances or want of knowledge and approval?
Knowledge and approval concerns whether the Will-maker knew and approved the contents of the document. Where the circumstances surrounding execution excite suspicion — for example, where a substantial beneficiary was closely involved in giving instructions — the propounder must dispel that suspicion by affirmatively proving knowledge and approval. That is a separate inquiry from undue influence, which requires proof of coercion, and from capacity, which concerns the Will-maker's mind.
Can capacity and undue influence be pleaded together?
Yes. Capacity, knowledge and approval, undue influence, fraud or forgery, and family provision may raise different issues on the same facts and may be pleaded in the alternative. Each ground has its own elements, evidentiary burden and remedy, and each must be considered separately on the evidence available.
What evidence may be relevant?
Evidence is fact-specific and its weight depends on the issues in dispute. Material that may be relevant includes contemporaneous medical records, the drafting solicitor's file and attendance notes, evidence from those who observed the Will-maker at the relevant time, earlier Wills and instructions, and evidence of the circumstances in which the Will was prepared and executed. Whether particular evidence assists a party is a matter for the Court on the whole of the material.
Is a family provision claim the same as challenging validity?
No. A family provision (TFM) claim under Part IV of the Administration and Probate Act 1958 (Vic) assumes that the Will is valid and asks the Court to order provision out of the estate for an eligible person for whom the deceased failed to make adequate provision for proper maintenance and support. Challenging validity on capacity, undue influence or knowledge and approval grounds is a separate probate proceeding with different tests, evidence and remedies.
How Parke Lawyers Can Help
Parke Lawyers advises executors, beneficiaries and family members on will validity issues — testamentary capacity, knowledge and approval, undue influence and suspicious-circumstances challenges — through our Estate Litigation & TFM Claims team. Speak with our estates team early — the evidence about capacity and instructions is best gathered close to the time the will was made.
Contested Wills & TFM Claims
Considering a validity challenge in Victoria?
Parke Lawyers advises executors, beneficiaries and family members on validity challenges to Wills in the Supreme Court of Victoria, including capacity, knowledge and approval and undue influence. Whether any ground is available depends on the individual facts.
This article is general information only and does not constitute legal advice. Please obtain advice tailored to your circumstances.