Australia: Displacing Testamentary Capacity: the Standard of 'Normality' Needed to Write a Valid Will

For a person to write a valid will, they must have testamentary capacity, which means that he or she must:

  • understand his or her acts, the nature of those acts, and the extent of his or her testamentary dispositions;
  • comprehend the claims to which he or she ought to give effect; and
  • not be influenced by any insane delusion in the disposition of his or her property.

The fact that a person is very old, suffering from dementia, under the influence of drugs, alcoholic, suicidal, suffering schizophrenia or any number of other factors does not necessarily negate mental capacity. Even a person who suffers insane delusions can have testamentary capacity as long as those delusions do not relate to the testamentary act. 1

The recent case of Same v Fuller 2 is a good demonstration of the difference between what might be considered unusual or eccentric behaviour, and lack of testamentary capacity.

Mr Wesley Fuller committed suicide on 28 December 2006, aged 25 years, by walking off the edge of the twelfth floor of the Novotel Langley Hotel on Adelaide Terrace, Perth. Mr Fuller abused amphetamines and suffered depression. He led a “solitary and unconventional lifestyle”.

Mr Fuller’s assets totalled approximately $380,000, most of it the result of inheriting a house when his mother died. The house was sold in August or September 2006. In the three months that followed, Mr Fuller spent approximately $100,000.

The will was prepared on 25 October 20063 by a solicitor and included the following terms: 4

  • Certain sealed envelopes and their contents were to be given to Mark Thomas Tremonti, Scott Anthony Stapp, Edward Kowalczyk and Edward Vedda. Mr Tremonti and Mr Stapp were band members of Creed5, Mr Kowalczyk was the former lead singer of Live 6 and now a solo performer, and Edward Vedder is the lead singer and one of three guitarists for Pearl Jam 7. There was no evidence to suggest that Mr Fuller knew these individuals personally.
  • The sealed envelopes were believed to include a CD of music, written and performed by Mr Fuller. The will went on to set out a mechanism whereby those individuals would be entitled to a percentage of the estate depending on whether they personally signed for receipt of the sealed envelopes. The first signing party would receive copyright to Mr Fuller’s music.
  • Mr Fuller’s executor is then to utilise “an agent with the necessary contacts in the music or entertainment industry who has the means to liaise directly with the official management of Messrs Stapp, Tremonti, Kowalczyk and Vedder”, and that agent was to receive 3% of the estate for each beneficiary signature obtained.

The sealed envelopes did once exist but could not be found after Mr Fuller’s death.

Mr Fuller’s father and sisters sought to have the will declared void on the basis that he did not have testamentary capacity at the time of execution. That dispute was settled in June 2010, but it was still necessary to convince the Court that the will should be admitted to probate. The Court therefore needed to be satisfied that Mr Fuller had testamentary capacity.

Notwithstanding the unusual nature of the bequests, Mr Fuller’s amphetamine abuse, depression and “unconventional lifestyle”, he was found to have testamentary capacity. Mr Fuller’s position was helped considerably by the fact that he had engaged lawyers to prepare and oversee the execution of his wills, none of whom “had any doubts or anxieties about his capacity to make the will...” and that the medical practitioners he had seen over the six months prior to his death, whilst expressing concern for him, could not conclude at the time that he had any mental disease or incapacity.

This case highlights the fact that testamentary capacity means something quite specific, and may often represent a much lower standard of ‘normality’ than might otherwise be expected.


1For example, a delusion that there is something wrong with a person’s child would clearly affect their ability to properly prepare a will, but a delusion about a famous person or historical event will usually not affect the testamentary act.

2Same v Fuller [2012] WASC 196 delivered by EM Heenan J on 24 February 2012 (published 11 June 2012)

3Being the third of three wills in two months, dated 13 September 2006, 18 October 2006 and 25 October 2006

4There were a number of other terms relating to potential litigation that Mr Fuller was apparently pursuing, or intending to pursue, with a different law firm, as well as a bequest to the Cancer Council of Western Australia.

5An American rock band formed in 1995 in Tallahassee, Florida

6An American rock band formed in the late 80’s in York, Pennslyvania but achieving worldwide success in 1994

7An American rock band formed in 1990 in Seattle, Washington

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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