Help! I’m concerned that my loved one has a lack of Testamentary Capacity – what can I do?l May 2024

28-May-2024 Estates By Tamara Stevanovic

Help! I’m concerned that my loved one has a lack of Testamentary Capacity – what can I do?

Are you concerned your loved one suffered doesn’t have the capacity to make a valid will? Read on to find out what is necessary to challenge the Will.

With dementia and cognitive impairments prevalent in Australia, it is imperative to understand whether your loved one had testamentary capacity at the time of making their Will to ensure that they have not been taken advantage of leading to the estate becoming unnecessarily depleted.


Testamentary capacity is vital to ensuring a valid Will has been made by the testator. A Will can only be made by a person of sound mind, memory and understanding. In the absence of this, the whole Will can be void. However, a testator is presumed to have testamentary capacity until proven otherwise. If a person alleges that the testator did not have testamentary capacity at the time of making the Will due to suffering from delusions, that person may contest the Will. They will need to provide evidence to show that the testator lacked testamentary capacity.


The test for testamentary capacity was outlined in the case of Banks v Goodfellow (1870) LR 5 QB 549. For the testator to have testamentary capacity, the testator must:

  1. Understand the nature of the testamentary act and its effect;
  2. Understand the extent of the property being disposed;
  3. Comprehend and appreciate who might reasonably be thought to have a claim on their estate and be able to evaluate and discriminate between these claims; and
  4. Not be suffering from any delusions of the mind which would affect their testamentary dispositions.


The fourth limb of the Banks v Goodfellow test requires that no insane delusion influence the testator’s Will in disposing of the property, which if the mind had been sound, would not have been made. A delusion is defined as a fixed and incorrigible false belief which the victim could not be reasoned out of. A delusion is only relevant to the extent that it exists at the time of making the Will and to the extent it affects the ability to satisfy the Banks v Goodfellow test.

In a recent case of Croft v Sanders [2019] NSWCA 303, the testator’s daughters challenged the Will claiming he did not have capacity as he suffered from cognitive impairment, delusions and hallucinations. Throughout the proceedings, medical evidence from the testator’s neuropsychologist, geriatrician, GP and psychiatrist was adduced along with evidence from the testator’s solicitors. It was concluded that there was likely to be variability in the testator’s cognitive ability at different times and that the evidence together satisfied the Court that the testator was able to comprehend and appreciate the claims on his estate and the extent of his estate, satisfying the Banks v Goodfellow test.

As such, this case is helpful in understanding that whilst a testator might suffer from delusions, hallucinations or cognitive impairments, the Court will assess whether the testator had testamentary capacity on a case-by-case basis. It is important to note that not all cognitive impairments are relevant to testamentary capacity and that both medical and lay evidence can be used to establish whether the testator suffered from delusions at the time of making the Will and the extent to which this may have affected the dispositions made in the Will.


If you are concerned that your loved one did not have capacity at the time they made or modified their Will and may have been taken advantage of, call Streeterlaw now on 02 8197 0105 or email to discuss your options on how to contest the Will and ensure a fair outcome for your family.

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Written by Tamara Stevanovic

Tamara Stevanovic

Tamara studied a combined degree in Law and Commerce at Macquarie University. She attained her Graduate Diploma of Legal Practice from the College of Law in 2021 and is currently undertaking her Masters of Law in Commercial Litigation. Tamara is passionate in taking a commercial approach to resolving all disputes in both commercial litigation and estate litigation matters and is a valuable asset to the Streeterlaw team

Call us on 02 8197 0105 to book an appointment with Tamara Stevanovic!

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