By Hadyn Oriti

One of the growth areas in the law (and one which we consider to be an unfortunate development) is the proliferation of claims made on an estate.  It seems to be a product of longevity and the ailments that accompany old age.

The period following the death of a loved one should be a time of grieving and celebration of their life.  However, once that time ends, thoughts may turn to more prosaic matters such as “what’s in the will for me?”

Generally, there are two types of claims made in respect of a person’s estate.  They are that the claimant was not adequately provided for or that the will-maker did not have the requisite capacity to make the will.

This article does not consider that questions of inadequate provision.  Rather, we discuss what is known as “testamentary capacity”. Now, if a person did not have capacity to make a will one of two things will happen; either an earlier Will which favoured the person making the claim is resurrected, or there is an intestacy because they had not made a prior will.  The person bringing the claim will see that it is to their benefit that one of those occurs.  So, let’s be clear, these claims are always about money.

Over the centuries, the rule for testamentary capacity has been that a person making a Will must:

  1. have the capacity to understand the nature of the act of making a Will and its effect;
  2. understand the property which they will distribute by their Will; and
  3. understand and comprehend the moral claims of potential beneficiaries.

Further, they must not be suffering from some condition that interferes with their normal decision-making.  The issue for us in this time is that as more of us are living longer, we are frequently developing the medical conditions of the aged that affect cognition and memory.  Too many of us suffer from dementia, Alzheimer’s disease or other ailments that affect our ability to think.

Whilst parties may have been diagnosed with medical conditions that affect their mental capacity, a medical diagnosis of such conditions is not necessarily conclusive of a person’s testamentary capacity.  The authorities are quite clear - a person may be diagnosed with dementia, for example, but still retain testamentary capacity.  The issue is a legal test not a medical one.

It is up to the lawyer taking instructions to determine whether their client has capacity.  If the lawyer is satisfied that they do, then they are obliged to prepare a Will, especially if the client is relatively coherent, because a failure to do so could leave them exposed to a liability to disappointed beneficiaries.

An order of a Tribunal under Guardianship legislation that someone is not capable of managing their affairs is also not conclusive evidence that a person lacks testamentary capacity at that point in time.  So the fact that a person may be under a Financial Management Order does not necessarily preclude them from making a Will.

Whilst medical evidence is of assistance to the Court in determining the context in which a Will may be made, if there is a dispute as to capacity, then it is up to the Court to decide whether the Will is a valid document.

To that extent, the evidence of the lawyer taking instructions becomes critical.

This firm has decades of experience in such matters acting for many Will makers and executors defending claims by parties seeking to impugn a Will.

Should you require any further information, please contact Hadyn Oriti on (02) 6583 0449 or

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