Australia: What is testamentary capacity? A basic guide.

Last Updated: 17 October 2018
Article by Joshua Crowther

As a lawyer specialising in wills and estates, I find myself increasingly providing advice (and often launching legal proceedings) on the basis that a deceased will maker lacked the testamentary capacity to make his or her will.

The recent case Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007 is a case in point. In this case, a testator's final will was challenged. The court held this final will to be invalid due to lack of testamentary capacity. Probate was granted to a will made two years earlier instead. (For the background facts to this case, please see my earlier article Did the old man have the mental capacity to change his will? Which case won?)

Testator gives no reason for changing his will

In considering whether the testator, Mr Frank Ryan, had testamentary capacity at the point when he made his final will, the court examined a number of factors.

One significant factor was that Mr Ryan had always told his spouse and children that his finances were separate from hers and that he would leave his estate to his children.

There was no explanation from Mr Ryan as to why he was changing his will from the previous instructions, when it was previously accepted by all parties that he and his de facto partner had agreed to keep their finances separate.

Delusions, confusion and higher order executive functions

The nursing home's notes indicated that Mr Ryan's condition deteriorated after 2011 and that he suffered from occasional delusions and confusion. For example, he told his de facto partner that the nursing home staff had made him sleep in a paddock and that he sometimes had to beg them for food. (Keep in mind that such information would not have been apparent to the lawyer preparing the will and would have required some real investigation.)

Expert evidence after Mr Ryan's death suggested that while he could understand his affairs, have lucid intervals and appear to be aware, he was suffering from vascular dementia which affected his higher order executive functions.

The court also noted that the legal concept of a "lucid interval" is open to doubt from a medical perspective. Functions such as attention and alertness are thought to improve during such intervals, but not necessarily memory or higher order executive functions, which are essential for testamentary capacity.

NSW Law Society guidelines for testamentary capacity

An important factor in the court's decision was that the solicitor preparing Mr Ryan's will was not aware of the NSW Law Society guidelines relating to testamentary capacity: When a Client's Mental Capacity is in Doubt: A Practical Guide for Solicitors. Consequently, she failed to take the recommended precautionary measures when preparing Mr Ryan's 2013 will.

When getting Mr Ryan to sign the will, the solicitor read out the draft to him but did not seek confirmation of his instructions by asking non-leading questions (for example, "Remind me Frank, what did you want to do in your will?" "Can you remind me what assets you have?" "Remind me, how many children do you have?")

Reading a will out aloud and relying upon implied agreement, expressed by the client nodding his head, is not enough to demonstrate agreement or awareness.

Another significant factor considered by the court was that the solicitor preparing Mr Ryan's will was not aware that he had dementia. She never asked questions of Mr Ryan, or of nursing home staff, that would have clarified this. Part of the reason for this was that Frank appeared to be lucid and without any suggestion of lacking capacity (the solicitor's file notes were very detailed as to conversations had with Frank).

Wills drafted when testamentary capacity may be in doubt

If there is any question about a client's ability to make a will, a lawyer must address the question of testamentary capacity, which will not always be obvious. For lawyers and their clients, this creates the potential problem of a blowout in costs.

Conducting investigations with medical personnel and seeking opinions about mental capacity involves additional work for the lawyer and can take a substantial amount of time. A client is unlikely to be delighted with a solicitor charging far more than expected to make a will, particularly when capacity seems to be existent (especially for the client).

However, if, after the testator's death, a will is challenged in NSW on the basis of testamentary capacity, the court will want to know whether the solicitor identified the factors in the NSW Law Society guidelines referred to above when taking instructions from the client to make the will. This is certainly the case if the client was a resident in a nursing home at the time the will was made.

Banks v Goodfellow test of testamentary capacity

The test for testamentary capacity was set out in the 1870 English case Banks v Goodfellow, where the judge said:

It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which if the mind had been sound, would not have been made. [Emphasis added.]

In other words, the person making the will has to understand:

  • What it means to be making a will
  • What assets he or she possesses and is leaving to others, including real estate, money held in bank accounts, any other investments and any refundable accommodation deposit paid to a nursing home
  • Who the people are who could make a claim on the estate and what moral obligation is owed to those people

Finally – and this was the hurdle that could not be cleared in Ryan v Dalton – in order to have testamentary capacity, the will maker cannot be affected by a mental disorder influencing the disposal of his or her assets. The evidence of Mr Ryan's dementia and his solicitor's failure to take the recommended steps to dispel such doubts meant that he failed this test.

Joshua Crowther
Will disputes
Stacks Law Firm

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions