WHAT IS TESTAMENTARY CAPACITY?
Testamentary capacity refers to a testator’s mental ability at the time of making or altering their Will. The testator must be of sound mind. The definition of having sound mind means having a healthy and clear mind that can understand things properly.
The elements of what testamentary capacity entails is set out in the case of Banks v Goodfellow which basically states that the testator must be able to comprehend and understand the nature of the Will and what the effects of the Will are. They must understand what the assets are that they possess and they need to be able to consider all potential people who would have a right to make a claim against the estate.
The testator’s testamentary capacity may be challenged when they die, often in situations where a family member has allegedly witnessed the testator lacking testamentary capacity while they were alive. An example of this is in the case law of Banks v Goodfellow, where it states that the testator had made a Will in 1863 but was confined as a lunatic in 1841 for a few months. The testator had experienced delusions, making remarks that he was being pursued by evil spirits which he believed to be visible. These delusions were present during the period of 1841 until his death which occurred in 1865, two years prior to the making of his Will. The testator had one full sister and one half-brother, both predeceased. Both siblings had children but the testator’s Will only provided for his sister’s only daughter and had not provided for any of his half-brother’s children. The plaintiff in this matter was the nephew of the testator, son of the half-brother, who was arguing that at the time of executing the Will, the testator did not have testamentary capacity. The question with this case was whether the testator was capable of making his Will, given he suffered from occasional delusions and was seen as insane from time to time. The testator was able to manage his affairs but this case law states that the fact the testator was able to manage some business or recollect some things, that alone was not sufficient to show he was capable.
The Banks v Goodfellow case law states that it was not a question of what the degree of the memory of the testator was, but instead, was he capable of recollecting the property he was to dispose of and how he was disposing of them. The case law simplifies this by saying “ was his mind and memory sufficiently sound to enable him to know and to understand the business at the time he executed the Will?” To read the full case law, please refer to the following link
Banks v Goodfellow [1870] UKLawRpKQB 74; (1869-1870) LR 5 QB 549 (6 July 1870) (commonlii.org).
When a testator’s testamentary capacity is challenged when a Grant of Probate is being sought in their estate, the Supreme Court of Victoria may seek evidence that they had testamentary capacity at the time they executed their Will. Now, a Solicitor stating that they believed the testator to have understood the nature and extent of the contents of the Will may not be enough. A letter from the testator’s Medical Practitioner from an assessment that was done shortly before the testator executed their Will may be evident enough to prove to the Court that the testator had capacity.
If you require further advice regarding testamentary capacity, please contact our office on (03) 9707 1155 or via email at admin@wslegal.com.au.