Header Articles

Testamentary Capacity

March 2021

When lawyers receive instructions to draft a Will for a client the lawyer must satisfy himself or herself that the client has the mental capacity (testamentary capacity) to understand the nature and effect of the instructions being given. If the lawyer can not be satisfied, then there needs to be a capacity assessment. 

In a recent High Court decision, the issue of testamentary capacity was considered in detail.

The case


During his lifetime the deceased had made seven Wills and three codicils (being amendments or variations to the last Will made at that particular time). Under the first six Wills NG was a beneficiary but was excluded in the deceased’s 2004 Will, which instead included NG’s son (NVG) as one of the beneficiaries.  

By 2013, the deceased was a 92-year-old man with a terminal illness. There had been a pattern of him engaging in discussions with his lawyer to revise his Will. The lawyer had concerns regarding capacity and telephoned the deceased’s doctor. The doctor commented that drastic changes to the deceased’s Will may indicate a more “deep-seated issue” which the lawyer understood to mean a lack of capacity. The lawyer took no further steps to clarify the capacity issue. The codicil was signed on 25 June 2013 removing NVG as a beneficiary but not inserting any other person or persons as beneficiaries. 

Following the deceased’s death an application was made to the Court by NG on behalf of NVG (a minor) claiming that the deceased lacked testamentary capacity when he executed the 2013 codicil and sought an Order of the Court upholding the terms of the 2004 Will (including NVG as a beneficiary).

The decision


The Court considered the evidence and concluded:

(a)   The deceased’s conduct between 2011 and 2012 was consistent with someone who lacked capacity to control the revision of his Will;

(b)  It was difficult to understand why at the last stages of his life, without apparent reasons, the deceased would choose to execute a codicil that excluded some family members who had previously benefitted under his 2004 Will;

(c)   The indecisiveness and lack of action on the various Will revisions was consistent with the deceased struggling because of his lack of testamentary capacity; and

(d)  The lawyer should have taken steps to have the deceased’s capacity formally assessed by a medical practitioner with expertise in this field.



  1. For all legal documents, the issue of legal capacity is critical. If a person does not understand the effects and implications of what they are signing, then the document will be invalid.
  2. One aspect of determining capacity is to consider the nature of the document the person is wanting to sign. The more drastic the changes from the conventional norms, then the greater likelihood that consideration must be given to the issue of capacity. For example, leaving an Estate to the next door neighbour rather than the will-maker’s children would be considered a drastic change.
  3. The Court decisions place a significant obligation on lawyers to not only be satisfied about their client’s capacity but also to retain compelling evidence to support the lawyer’s view as to capacity.