It is a worry many families share. An older parent, partner or relative changes their will late in life, and the changes seem out of character. Perhaps they had memory problems, were unwell, or had recently been in hospital. You begin to wonder whether they really understood what they were signing.

In NSW, you can challenge a will if the person lacked testamentary capacity when they made it. This article explains what that means, how courts approach the question, and what to do if you have concerns.

What is testamentary capacity?

Testamentary capacity is the legal ability to make a valid will. NSW courts apply a long-standing test from Banks v Goodfellow, an English case decided in 1870. In plain English, the person making the will must have:

  • An understanding of what a will is and what it does
  • A general understanding of what property they own
  • The ability to understand who might reasonably expect to benefit, such as a spouse or children
  • No disorder or delusion of the mind that distorts their judgement or feelings when making the will

Capacity is judged at the time the will was made, meaning when instructions were given to the lawyer and when the will was signed. What a person could or could not do on other days is less important.

Does a dementia diagnosis mean a will is invalid?

Not automatically. Capacity is a legal question, not a purely medical one. A person with early dementia or another condition can still have capacity at a particular moment. On the other hand, a person without a formal diagnosis may lack capacity because of illness, medication or confusion. The court considers all of the evidence.

The test is also not a memory test. Forgetfulness alone does not prove that a person lacked capacity.

Who has to prove what?

If a will appears to have been properly made, with signatures and witnesses, the law starts by presuming that the person had capacity. If a challenger raises enough evidence to cast real doubt, the burden shifts to the person relying on the will to prove that capacity existed.

What evidence is used?

  • Medical records from GPs, hospitals, specialists and aged care providers
  • Cognitive assessments and expert medical opinions, including opinions given after the person has died
  • Notes and evidence from the lawyer who prepared the will, and from the witnesses
  • Earlier wills, to see whether the changes make sense
  • Financial records and correspondence from around the time
  • Accounts from family, friends and carers about the person’s behaviour

Evidence from the solicitor who took instructions can carry significant weight, but it is not the only factor. Many lawyers follow good practice by seeking a medical opinion if capacity is in doubt, but the absence of one does not make a will invalid.

A simple example

Imagine a father in his late 80s with early memory loss who changes his will after a hospital stay, leaving most of his estate to the child who helped care for him. His other children are surprised. A lawyer would look at his GP and hospital notes, the solicitor’s file, and how the new will compares with earlier wills.

The question is not whether he was forgetful. It is whether he met the legal test when he gave instructions and when he signed. The answer depends on the evidence, and it can go either way.

Other grounds for challenging a will

  • Undue influence, where pressure overbore the will maker’s free decision
  • Lack of knowledge and approval, where the person did not understand or approve the contents
  • Fraud or forgery
  • Formal requirements not met, for example, the will was not properly signed and witnessed

Different grounds need different evidence, and a challenge can raise more than one.

Steps to take if you have concerns

  • Speak with a lawyer early, ideally before probate is granted.
  • Ask about lodging a caveat with the Supreme Court of NSW. A caveat can stop a grant of probate while your concerns are investigated. It generally lasts six months and can be extended.
  • Collect and preserve evidence, and ask a lawyer how records can be requested.
  • Consider mediation. Many estate disputes resolve without a trial.
  • Keep the 12-month time limit for family provision claims in mind, as it may be an alternative or a backup.

Estate disputes carry costs risks, and the court has wide powers over who pays legal costs. We explain these risks clearly from the start.

What if the person is still alive?

You can only challenge a will after death. If you have concerns about a living family member’s capacity, a lawyer can advise on options such as enduring powers of attorney, guardianship through the NSW Civil and Administrative Tribunal, or, in some cases, a court-authorised will.

Frequently asked questions

How long do I have to challenge a will for lack of capacity?

There is no single fixed limit for challenging validity, but delays can create problems, for example after probate is granted or assets are distributed. Family provision claims have time limits (from 9 to 12 months depending on which state law applies) from the date of death. If you seek to challenge a will after the time limit, this is possible, but only with permission of the Court. Get advice quickly. 

Is a doctor’s letter enough to prove capacity?

A doctor’s opinion can help, but it is one piece of evidence. The court considers the whole picture.

What happens if a will is found invalid?

The court may admit an earlier valid will instead. If there is none, the rules of intestacy apply.

Who can challenge a will?

Generally, people with a financial interest in the outcome, such as beneficiaries under an earlier will or people who would inherit if the will fails.

How AJB Stevens can help with testamentary capacity dispute NSW

Capacity disputes are sensitive and evidence-heavy. AJB Stevens is a Sydney litigation firm that is small enough to care and big enough to fight. We can assess your concerns honestly, help gather the right evidence, and guide you through negotiation, mediation or court if needed.

Contact AJB Stevens for a confidential consultation and tailored advice.

This article provides general information only and is not legal advice. Every situation is different, so please speak with a lawyer about your circumstances.