Wills have always been changed and updated as circumstances in
life change, but with increasing longevity and a significant
elderly population, there are more and more wills being executed
and altered late in life when illnesses or cognitive disabilities
including Alzheimer's or dementia may be affecting the
testator's capacity. Capacity is also a fundamental issue to
address when appointments of enduring power of attorney and
superannuation binding death benefit nominations are being
The classical test of capacity from Banks v Goodfellow
(1870) LR 5 QB 549 remains relevant, being reaffirmed in a number
of modern cases including by Hallen J in the NSW Supreme Court
decision of The Estate of Stanislaw Budniak; NSW Trustee &
Guardian v Budniak  NSWSC 934 (Re Estate of
The capacity test in Banks v Goodfellow, requires a
Understand the nature of the act and its effects;
Be aware of the extent of the property of which s/he is
Appreciate the claims to which s/he ought to give effect.
These elements recognise the need to consider both:
the medical issues of mental capacity or cognition and
the legal elements of appreciation of the entitlements and
It is not always necessary for a medical certificate to be
obtained: the legal practitioner can often apply the test
The application of the Banks v Goodfellow test may find
that a person with severe dementia nonetheless has capacity to
execute a straightforward will made in relation to a simple set of
family and property circumstances, while another person with only
mild symptoms of dementia seeking to execute a complex will may on
the same test may be found lacking capacity.
Therefore, apart from consultation with a medical specialist,
the legal practitioner's main task is to be able to answer
"yes" to the following questions:
Does the testator realise that they are executing a will and
understand the meaning of doing so?
Is the testator aware of their property arrangements and how
their property is owned?
Does the testator have an understanding of their family
situation such that would enable them to properly consider which
family members or other persons are to be remembered in the will or
excluded, and if so, the reasons for their exclusion. Detailed file
notes must be taken by a practitioner after a signing meeting where
capacity issues have been considered.
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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