Testamentary capacity is a legal standard that applies to a person’s mental fitness to create or change a Will.
To check whether you have testamentary capacity, a solicitor needs to apply the following four-question test:
Unless otherwise indicated, it’s assumed that you do have testamentary capacity.
Testamentary capacity matters because it determines the validity of your Will.
If you are found to lack capacity, any Will you made while lacking such capacity may be considered invalid – if you die, the Court will normally order your old Will to be validated.
But, if you haven’t made a valid Will before, you’ll die intestate (without a Will), which means your estate will be distributed according to the Victorian rules of intestacy.
When people are making a Will, they can come under pressure from friends and family members who want to be beneficiaries.
The pressure can be highly coercive, involving threats, confinement, or physical violence, or mildly coercive, such as constant harassment.
This is known as ‘undue influence’.
Exerting undue influence over a testator (the Will-maker) during the making or updating of a Will renders it invalid.
To prove undue influence, you may need to provide the following:
If you think a loved one was unduly influenced into making or updating a Will, get in touch with our Wills and estates solicitors for advice.
In Victoria, testamentary capacity can be challenged by certain people, including:
To successfully challenge a Will, you’ll need to prove to the Court that the deceased person did not have testamentary capacity.
Your lawyer can file a probate caveat, which prevents administration of the estate and gives you time to gather evidence.
If a caveat is filed by someone who can’t legally challenge the Will, your lawyer can ask the Court to remove the caveat.
If no removal is requested, the caveat will remain in place for six months.
In exceptional circumstances, a person may be able to have a Will made even where they lack testamentary capacity.
For example, if a person is proven to lack capacity, the Supreme Court of Victoria can approve a statutory Will.
A statutory Will must be drafted and submitted by the person applying to the Court (such as a relative or friend of the testator).
The Court then reviews the Will in the context of the testator’s likely wishes.
Statutory Wills are normally made to prevent a person dying intestate.
If a loved one lacks a valid Will and doesn’t have testamentary capacity, get in touch with our Wills and estates team.
We’ll work with you to draft a Will that’s representative of their wishes and to help you make an application to the Court.
Penny is a leading family law solicitor admitted in the Supreme Court of Victoria.
She has a broad range of expertise across multiple practice areas like family law, Wills and estate planning, and personal injuries, and holds a Masters of Wills and Estates Law.
Nick is a senior personal injury and estate law solicitor who has practised in both Victoria and Queensland.
His local and interstate experience covers statutory claims, common law damages, and strategic estate planning.
Nick is fluent in both Greek and Spanish.
If you’re thinking about making or updating a Will, reading up on the basics of Wills and estate planning can be helpful.
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