Information Centre · Wills & Estate Planning
What Is Testamentary Capacity in Victoria?
Testamentary capacity is the legal ability to make a valid Will. In Victoria it is assessed by reference to the test in Banks v Goodfellow, applied to the specific instrument and the specific Will-maker, ordinarily at the time of execution and subject to the narrow rule concerning earlier instructions explained below.
Capacity is a legal question decided by the Court on the whole of the evidence in the individual case
Key points
- Testamentary capacity is the legal ability to make a valid Will, assessed by reference to Banks v Goodfellow (1870) LR 5 QB 549.
- The four elements — nature and effect of a Will, general extent of property, comprehension of relevant claims, and freedom from any disorder of the mind or delusion influencing the disposition — are considered together.
- Capacity is decision-, document- and time-specific and is ordinarily required at execution, subject to the narrow Parker v Felgate principle; a diagnosis of dementia or another cognitive condition neither automatically proves nor disproves it.
- The propounder bears the ultimate onus; a presumption of capacity assists where the Will is rational on its face and duly executed, and is displaced where a real doubt is raised on the evidence.
- Medical evidence is relevant but not conclusive; the Court also considers the drafting lawyer's evidence, lay observations, records of independent instructions and what the Will-maker actually understood.
- Capacity, knowledge and approval, suspicious circumstances, probate undue influence and family provision are distinct inquiries with different tests and remedies.
- An attorney cannot make a Will for a principal. If a person lacks capacity, the statutory-will jurisdiction under Part 3 Division 2 of the Wills Act 1997 (Vic) is the possible alternative.
- Before a grant, a caveator must have standing and show a prima facie case for investigation; after a grant, revocation requires Court proceedings, and costs remain discretionary.
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Testamentary capacity is one of the requirements for a valid Will. In Victoria it is assessed by reference to the four-limb test in Banks v Goodfellow (1870) LR 5 QB 549 and is considered together with due execution and the Will-maker's knowledge and approval of the contents of the document. This article sets out the elements of the test, the presumption and burden of proof, the role of medical evidence, and the probate remedies available where capacity is not established. It is general information only and is not legal advice.
The Legal Test
Ordinarily, the Will-maker has testamentary capacity if, at the time of executing the Will, they:
- Understand the nature and effect of a Will — that the document takes effect on their death and directs the disposition of their property.
- Understand, in general terms, the extent of the property being disposed of — precise balances are not required; a broad understanding of what they own is.
- Comprehend and appreciate the claims to which they ought to give effect — the persons who might have moral or legal claims on the estate, including spouse, children, dependants and others.
- Not be suffering from any disorder of the mind or insane delusion that influences the disposition — this is the fourth Banks v Goodfellow limb and it is directed to disorders of the mind or delusions that shape or distort the testamentary disposition itself, not to any and every mental condition.
The four limbs are considered together. None of them requires perfect memory, exhaustive recall of every asset or detailed legal knowledge. The threshold is one of functional understanding directed to the requirements of the specific Will.
Capacity Is Decision-, Document- and Time-Specific
Capacity is ordinarily assessed at the moment the Will is executed and by reference to the specific instrument, subject to the narrow Parker v Felgate principle discussed below where instructions and execution occur at different times. A person may have the capacity required to make one Will and not another. Capacity may also fluctuate. Age, a diagnosis of dementia or another cognitive condition, illness or medication neither automatically proves nor disproves testamentary capacity. The question is what the evidence shows about the Will-maker's understanding of the four Banks v Goodfellow limbs at the relevant time.
Presumption and Burden of Proof
The party propounding the Will bears the ultimate onus of proving due execution, knowledge and approval and testamentary capacity on the balance of probabilities. Where the Will appears rational on its face and has been duly executed, an ordinary presumption of capacity assists the propounder. That presumption is not a substitute for proof, and it is displaced where a party challenging the Will raises a real doubt as to capacity on the evidence. Once displaced, the propounder must affirmatively satisfy the Court that the Will-maker had capacity at the time of execution. It is not correct to describe the burden as remaining on the challenger throughout.
Victorian authority applying that approach includes Kantor v Vosahlo [2004] VSCA 235 and Veall v Veall [2015] VSCA 60. The civil standard is the balance of probabilities. The seriousness and inherent unlikelihood of an allegation affect the strength of evidence needed to reach reasonable satisfaction; they do not create a separate standard.
Medical Evidence
Medical evidence is relevant to capacity but is not conclusive of it. Contemporaneous medical records — GP notes, hospital records, specialist reports, and any capacity assessment prepared at or about the time of execution — may assist the Court, particularly where they address the elements of the Banks v Goodfellow test rather than a general medical diagnosis. Retrospective medical opinions given after death may also be considered. The Supreme Court of Victoria's current guidance encourages careful attention by drafting solicitors, including detailed attendance notes, where capacity is in doubt; it does not impose a universal pre-signing medical assessment for every Will. The value of medical evidence in any particular case depends on its content and the issues in dispute.
A screening score such as an MMSE is not the legal test. Nor should age, communication disability, an interpreter or a communication aid be mistaken for incapacity. Good practice is to obtain instructions independently of interested people, use appropriate communication support and record the Will-maker's actual explanation of assets, potential claims and proposed dispositions. A checklist or certificate which does not test those matters may carry limited weight.
Evidence is not confined to doctors. The drafting lawyer's contemporaneous attendance notes, the witnesses' observations, family and carer evidence, and records showing the Will-maker's conduct before and after execution may all matter. Retrospective expert opinion is tested against that contemporaneous material. Capacity remains a legal conclusion for the Court, not a medical conclusion delegated to one expert.
Instructions and Execution at Different Times
The narrow rule in Parker v Felgate (1883) 8 PD 171 may apply where a person had capacity when giving instructions, the Will was prepared from those instructions, and at execution the person understood that they were signing the Will prepared in accordance with them. It is not a general exception to capacity and should not be assumed where the draft changed materially, instructions were incomplete or the person did not understand what was being signed.
Knowledge and Approval
Testamentary capacity is a separate inquiry from knowledge and approval, although the two often arise together. Knowledge and approval asks whether the Will-maker knew and approved the contents of the document as their Will. Where the circumstances surrounding execution excite the suspicion of the Court — for example, where a substantial beneficiary was closely involved in giving instructions or arranging execution — the propounder must dispel that suspicion by affirmatively proving knowledge and approval.
Related Grounds: Undue Influence, Fraud, Forgery
Probate undue influence requires proof of coercion overbearing the free volition of the Will-maker; it is distinct from capacity and from knowledge and approval. Fraud requires proof that the Will-maker was misled by a false representation. Forgery requires proof that the signature or document is not genuine. Each ground has its own elements and its own evidentiary requirements. For the interaction between capacity and undue influence, see undue influence and testamentary capacity.
Informal-Will Relief
Section 9 of the Wills Act 1997 (Vic) allows the Supreme Court, in defined circumstances, to admit to probate a document that does not satisfy the formal requirements of a Will, where the Court is satisfied that the person intended the document to be their Will. Informal-Will relief is a distinct question from testamentary capacity and from knowledge and approval, and each issue must be considered separately.
Family Provision Is Separate
A family provision (TFM) claim under Part IV of the Administration and Probate Act 1958 (Vic) is a separate remedy by which an eligible person may seek adequate provision from an estate distributed under a Will or on intestacy. It asks the Court to order provision for an eligible person for whom the deceased failed to make adequate provision for proper maintenance and support. It is not a challenge to the validity of the Will and does not turn on capacity, undue influence or knowledge and approval. The two kinds of proceeding may nevertheless coexist or be advanced in the alternative. The validity outcome determines which Will, or intestacy, governs the estate against which the family provision claim is assessed.
Caveats, Probate Proceedings and Costs
Before a grant, a person with a sufficient interest may lodge a caveat to prevent an unopposed grant while the issue is examined. A caveat is not proof of incapacity and should not be used merely to obtain leverage: standing, evidence, procedural deadlines and potential costs require advice. If probate has already been granted, a caveat does not undo it; revocation of the grant must be sought from the Court. Costs are discretionary and are not automatically paid from the estate merely because the dispute concerns a Will.
No Will Through an Attorney
An attorney cannot make or alter a Will for the principal. If a person lacks testamentary capacity, the possible alternative is an application for a Court-authorised Will under Part 3 Division 2 of the Wills Act 1997 (Vic). See our guide to statutory Wills in Victoria.
Probate Remedies Where Capacity Is Not Established
Where the propounder does not discharge the onus of proving capacity, the Supreme Court of Victoria may refuse to grant probate of the disputed instrument or, in a solemn form proceeding, pronounce against it. If the disputed instrument is not admitted to probate, the operative distribution depends on any earlier valid Will and, failing that, on the intestacy provisions in Part IA of the Administration and Probate Act 1958 (Vic). The outcome in any particular estate depends on the existence and terms of any earlier Will and on the statutory scheme.
Related Reading
For related material, see challenging testamentary capacity in Victoria, whether a person with dementia can make a valid Will and medical evidence in testamentary capacity disputes. For professional advice, see our Wills and estate planning service page.
Frequently Asked Questions
What is testamentary capacity?
Testamentary capacity is the legal ability required to make a valid Will. In Victoria it is assessed by reference to Banks v Goodfellow (1870) LR 5 QB 549. The Will-maker must understand the nature and effect of 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.
Does capacity have to exist for every part of the Will?
Capacity is ordinarily assessed by reference to the specific instrument at the time of execution. The Will-maker must have the capacity required to make the Will in question. A person may have capacity to make a straightforward Will while lacking capacity to make a complex one. A narrow exception may apply under Parker v Felgate (1883) 8 PD 171 where instructions were given with capacity and the Will was executed later in the conditions explained below.
Who decides whether a Will-maker had capacity?
Where capacity is put in issue, the Supreme Court of Victoria decides the question on the whole of the evidence. Medical evidence is relevant but is not conclusive; the ultimate question is the legal test in Banks v Goodfellow applied to the specific Will and the specific Will-maker at the time of execution.
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 appears rational on its face and has been duly executed, an ordinary presumption of capacity assists the propounder. If a party challenging the Will raises a real doubt as to capacity on the evidence, the presumption is displaced and the propounder must affirmatively satisfy the Court that the Will-maker had capacity at the time of execution. It is not correct to describe the burden as remaining on the challenger throughout.
Does a diagnosis of dementia mean a person lacks capacity?
No. Capacity is a legal question, not a medical diagnosis. A diagnosis of dementia, Alzheimer's disease, delirium or another cognitive condition does not, of itself, prove a lack of capacity. Nor does the absence of a diagnosis prove capacity. The question is whether, on the whole of the evidence, the elements of Banks v Goodfellow were satisfied at the time the Will was executed.
What role does medical evidence play?
Medical evidence is relevant to capacity but is not conclusive of it. Contemporaneous records of the Will-maker's presentation at or about the time of execution may assist the Court, particularly where they address the elements of the legal test. Retrospective opinions given after death may also be considered. The Supreme Court of Victoria's practice guidance encourages careful attention by drafting solicitors where capacity is in doubt, but current guidance does not impose a universal pre-signing medical assessment for every Will.
What is knowledge and approval?
Knowledge and approval concerns whether the Will-maker knew and approved the contents of the document as their Will. Where the circumstances of preparation and execution excite the suspicion of the Court, the propounder must dispel that suspicion by affirmatively proving knowledge and approval. Knowledge and approval is a separate inquiry from capacity and from undue influence.
What remedies are available if capacity is not established?
In the probate jurisdiction, the Supreme Court may refuse to grant probate of the disputed instrument or, in a solemn form proceeding, pronounce against it. If the disputed instrument is not admitted to probate, the operative distribution depends on any earlier valid Will and, failing that, on the intestacy provisions in Part IA of the Administration and Probate Act 1958 (Vic).
Is a capacity challenge the same as a family provision claim?
No. A capacity challenge is a probate proceeding directed to the validity of a Will. A family provision (TFM) claim under Part IV of the Administration and Probate Act 1958 (Vic) is a separate adequate-provision remedy that may arise whether the estate is distributed under a Will or on intestacy. The claims have different tests and remedies, but may coexist or be advanced in the alternative; the validity outcome determines which Will, or intestacy, governs the estate against which provision is sought.
What is informal-Will relief?
Section 9 of the Wills Act 1997 (Vic) allows the Supreme Court, in defined circumstances, to admit to probate a document that has not been executed in accordance with the formal requirements, where the Court is satisfied that the person intended the document to be their Will. Informal-Will relief is a distinct question from testamentary capacity and knowledge and approval, and each issue must be considered separately.
Wills & Estate Planning
Questions about testamentary capacity in Victoria?
Parke Lawyers advises Will-makers, families and beneficiaries on testamentary capacity, Wills prepared in circumstances of doubt, and probate challenges in the Supreme Court of Victoria. 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.