Capacity To Make A Will: NSW Legal Advice

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Most people would imagine that a person who has dementia is not capable of making, or even changing, a Will. However, in some cases, even a person with dementia can still have the capacity to make a Will or “testamentary capacity”. If you need to confirm the validity of a Will or see if a Will-maker has the capacity to make a Will, speak to the Wills and estate lawyers at Owen Hodge.

Does A Person Have Capacity To Make A Will?

Banks v Goodfellow

The legal test as to whether a person has the capacity to make a Will comes from the old English case of Banks –v- Goodfellow (1870) 5 QB 549. In this case, the deceased person was suffering from delusions; chiefly that his butcher was trying to kill him, even though this butcher had been dead for 11 years. In coming to its decision, the court determined that for a person to have capacity to make a Will there are five things that must be established.

What are the 5 tests for mental capacity to make a Will?

  1. The person making the Will understands what a Will does;
  2. They can recall what property they have;
  3. To remember those people that the person would ordinarily provide for under a Will;
  4. To give consideration to those people who would normally benefit under the Will;
  5. The person does not suffer delusions about any person who would expect to receive an entitlement under the Will. In the Banks v Goodfellow case, it was determined that the deceased did have capacity to make a Will, because the delusions he suffered were not about a person who would have normally benefited under his Will, i.e. people don’t usually leave part of their estate to their butcher.

Moving forward to the 21st century, and putting this case into perspective, we see the case law has evolved. The legal position now suggests that just because a person suffers from dementia, it will not automatically mean they are unable to make a Will.

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One of the most recent NSW cases dealing with this issue is cited as Apice v Gutkovich – Estate of Abraham (No . 2) [2010] NSWSC 1333 (22 November 2010). This case was about whether a 93 year old lady, Irene Abraham who had suffered from dementia for 5 years, had the capacity to make a Will. At the time of making a Will, she was subject to Guardianship Tribunal Orders (orders that someone else should manage her financial and lifestyle decisions, because she was under disability).

In the 15 months before her final Will, the deceased made four other Wills and codicils (an amendment to an existing Will). On some of those occasions, Ms Abraham’s doctor said she did not have the capacity to make any such Will.

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Nevertheless, Ms Abrahams’ health improved somewhat and her doctor changed his opinion, while her estate planning lawyer was also of the opinion that she now had the capacity to make a Will. This evidence ultimately led to the court finding that she had the capacity to make her will.

There are some very interesting parts of this case, which include finding that even though a person cannot manage their day to day affairs and do not have capacity to make decisions regarding their finances and lifestyle choice, they can still make a Will.

Speak to a Wills & estate lawyer

Owen Hodge Lawyers have experience in testamentary capacity cases. James Kelly, a partner of Owen Hodge, acts in many cases where the issue of whether a person has capacity to make a will arises. In 2009 he acted for successful plaintiff’s in a testamentary capacity case which can be viewed here.

If you would like a consultation or like to know more about the capacity needed to make a Will, please contact Owen Hodge on 1800 770 780.

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Want to ensure a Will is valid or learn more about testamentary capacity? Talk to the experienced Wills & estate lawyers at Owen Hodge


Frequently asked questions

For a NSW Will to be a valid, legal document, it should be:

  • In writing (typed, printed or handwritten)
  • Written by a person who is over 18 years of age and has the capacity to make a Will
  • Clearly outlines the Will-maker’s wishes
  • Signed in the presence of of two adult witnesses who have signed the Will and aren’t beneficiaries

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There is no prohibition on a person with a mental disorder making a Will. But in order for a Will to be valid, that person must have testamentary capacity at the time and they must:

  • Understand the nature of the act and its effects (what it means to make a Will)
  • Understand the extent of the property involved
  • Understand the claims of dependents or other family members for whom some provision should be considered.