How to challenge a Will due to lack of testamentary capacity

A study completed by the Australian Institute of Health and Welfare revealed that by the year 2053, 21% of the population will be aged 65 and over. In addition, a study completed by the Australian Bureau of Statistics determined that the amount of dementia cases is expected to increase 400% by 2050. Considering Australia’s ageing population and the increase in incapacitating mental disorders, it is predicted that there will be an increase in claims challenging testamentary capacity. Testamentary capacity involves one’s ability to comprehend the obligations of creating a Will and the impact it will have on the beneficiaries after the testator’s death. Testamentary capacity requires a person to be of sound mind at the time of preparing and executing their Will.

Sometimes a benefactor or other family member will contest the Will due to a belief that the deceased did not have the mental capacity to understand the consequences of creating the Will.

Do you have standing to challenge a Will?

To bring a claim one must have standing to do so. Having standing involves being able to demonstrate that you have a ‘special interest’ in the matter. That ‘special interest’ must be more than ‘mere intellectual or emotional concern’. In the circumstances of challenging a Will based on a lack of testamentary capacity, typically a person will have standing if they are a benefactor or family member who has been disadvantaged by the creation of the Will in question. For instance, if Party A pressured the testator lacking mental capacity to change their Will, so that he or she receives a greater provision out of the estate than Party B, then in this situation, Party B would have standing to issue a claim.

Challenging a Will

To challenge a Will due to a lack of testamentary capacity the courts have established that the plaintiff must prove the following:

  1. that the deceased lacked the awareness and knowledge required to create the Will;
  2. that the deceased lacked the understanding of the circumstances and extent of their assets;
  3. that the deceased lacked the ability to comprehend the claims which others may have against the estate;
  4. that the deceased was suffering from a mental disorder or insane delusion at the time of creating the Will.

Limitations to the standard test

In addition to the standard test outlined above, the court may also consider that a person making a Will might have a moment of lucidity, which allows that person to have will-making.

In more recent years, weight has also been given to the fact that in modern times management of one’s finances, including share portfolios and real estate is often handed over to financial managers and accountants. Therefore, people who allow another individual to handle their financial situation may not have full and proper understanding of their assets and the value of those assets.

While part 3 of the test provides that a testator must comprehend the claims that may arise after their passing from people not given adequate provision out of the estate, it does not disregard a testator’s freedom to be unfair or harsh with their property and not meet their moral obligations. The courts have recognised that the neglect of a will-maker in not meeting their moral obligations does not automatically indicate their lack of capacity.

In relation to the last element of the standard test, the simple fact that a testator suffered from a mental disorder will not necessarily lead the court to determine that the testator did not have will-making capacity. The courts have recognised that the existence of will-making capacity will depend on the gravity of the illness and whether the mental disorder impacts judgement, awareness, and decision-making.

Medical reports to support your claim

To support your claim, you must obtain the opinion of the testator’s capacity from their treating doctors at the time. In addition, a witness statement of the solicitor used to create and witness the Will, as they can attest as to how the testator presented when the Will was witnessed and their opinion on the testamentary capacity of the deceased.

Contact our estate lawyers

At Hentys Lawyers, we have experience dealing with hundreds of estate disputes, and over 95% have settled out of court. If you think you have a claim to challenge a Will, call our estate lawyers today for your free 30 minute initial consultation.