Testamentary Capacity in Victoria 

Learn how testamentary capacity is determined in Victoria – and what it means for your Will. 

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What Is Testamentary Capacity? 

Testamentary capacity is a legal standard that applies to a person’s mental fitness to create or change a Will. 

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The Testamentary Capacity Test 

To check whether you have testamentary capacity, a solicitor needs to apply the following four-question test: 

  1. Do you understand the purpose of the Will and its effects? 
  2. Do you understand the general extent of your estate and its assets? 
  3. Do you understand who, if anyone, has a legal and moral claim upon your estate? 
  4. Do you have a mental or physical health condition that impacts your ability to make rational decisions? 

Unless otherwise indicated, it’s assumed that you do have testamentary capacity.

Can you understand the current circumstances and the consequences of your decisions? 

Why Testamentary Capacity Matters

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. 

The Effect of Undue Influence 

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: 

  • The testator distributed their assets in an unexpected way. 
  • The testator was dependent on or trusted the person accused of undue influence. 
  • The testator was vulnerable to undue influence as a result of age or health conditions. 
  • The person accused of undue influence benefitted from the influence. 
  • There was some kind of coercion used. 

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. 

Challenging Testamentary Capacity 

In Victoria, testamentary capacity can be challenged by certain people, including: 

  • any beneficiary of a previous Will; 
  • a relative who would inherit under intestacy; 
  • someone with a share in the testator’s estate; and 
  • a person who would benefit if the Will was found to be invalid. 

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. 

Common Causes of Testamentary Incapacity 

disease

Alzheimer’s Disease or Dementia

Neurodegenerative Conditions 

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Psychiatric Illnesses and Psychosis 

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Substance Abuse 

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Personality Issues 

murder offence

Traumatic Brain Injury

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Making a Will When Someone Lacks Capacity 

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. 

Your Wills and Estates Law Team 

Penny LaGreca
Partner | Principal Solicitor 

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. 

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Nick Lionakis
Senior Solicitor 

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. 

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