What is Testamentary Capacity?

Testamentary Capacity is the standard required of a person wanting to make a Will. The Willmaker must understand the document being created, its effects, the extent of their assets and liabilities, and who has the potential to make a claim against their estate.

To assess Testamentary Capacity, the legal professional may conduct a functional test, which is not a medical diagnosis. Essentially, a person with a mental disorder may still have Testamentary Capacity or, in other words, still have the capacity to make a Will.

How Does Testamentary Capacity Affect the Validity of a Will?

A Will made by a person who lacks Testamentary Capacity can be deemed invalid by the Court. This means that the estate may instead be distributed under a prior valid Will or, if none exists, according to the laws of intestacy.

Disputes about capacity often lead to challenges in probate, delaying estate administration and potentially resulting in costly legal proceedings. Capacity is commonly questioned when Wills are made late in life, during periods of illness, or in circumstances where a “deathbed Will” is prepared.

How Is Testamentary Capacity Established in South Australia?

A solicitor drafting the Will will assess the testator’s understanding of their estate, their beneficiaries, and the implications of the Will. If there is doubt, a formal medical assessment may be obtained, and the resulting report can be stored with the Will as evidence of capacity.

Proving Testamentary Capacity

To establish Testamentary Capacity, a testator will typically be asked a series of questions by their solicitor. The solicitor will keep notes of these discussions, which can be provided if the testator’s capacity is later challenged.

Where there are doubts about an individual’s ability to meet the established legal criteria for Testamentary Capacity, they may be referred for a formal mental capacity assessment.

Affidavit of Testamentary Capacity

To further safeguard against disputes, a solicitor may prepare an affidavit of Testamentary Capacity. This document records the solicitor’s professional opinion, supported by their notes, confirming that the testator met the legal requirements for capacity when executing the Will.

If a medical professional has conducted an assessment, their report can also be annexed to the affidavit as supporting evidence. This affidavit can be highly persuasive in defending a Will if it is later contested.

Can a Will for a Testator Who Lacks Capacity Be Changed?

An application for an order authorising the making, altering or revoking of a testamentary document on behalf of a proposed testator can be made by application to the Supreme Court. The application must establish the following:

The person lacks Testamentary Capacity; and
The proposed Will alteration or revocation accurately records the intentions of the person if that person had Testamentary Capacity; and
It is reasonable in all the circumstances that the order should be made.

Who Can Make This Application?

The categories of persons who are permitted to make this application on behalf of the testator without capacity are:

The beneficiaries under any Will previously made by the person; and
Any person who would be entitled to receive any part of the estate of the person if the person were to die intestate, meaning there was no Will (this includes parents, grandparents, siblings, children of the siblings and grandchildren of the testator); and
Any person who would be entitled to claim the benefit under the Family Provision entitlements. This has the effect of further inclusion of:
- A former spouse or domestic partner of a deceased person whom can only do so if they prove that, just before the deceased’s death, there was no existing agreement or Court order regarding their property interests with the deceased; and
- A stepchild of a deceased person; and
- Any other person who has cared for or provided emotional support to the person.

Contact Us

If you are considering making a Will and have any concerns that your Testamentary Capacity may be questioned, it is important to seek legal advice to ensure your intentions are validly recorded and protected.

If you would like to make an application to change a Will where someone lacks Testamentary Capacity, believe a Will has been made by someone who may have lacked Testamentary Capacity, or wish to explore whether a Will can be contested, we invite you to contact us for advice tailored to your circumstances. We offer a free, no-obligation 30-min consultation for all enquiries.