Capacity is a key concept when it comes to forming testamentary intent and creating a will. It means that you have a sound mind and memory, with an understanding of what you are doing. If you lack testamentary capacity, your will is almost always considered invalid and inoperative. Notably, a decision of the courts last year discussed the topics of sanity and mental impairment in relation to testamentary capacity. In this article, we will explore the case of Croft v Sanders (2019) and the concept of capacity.

In the matter heard by the NSW Court of Appeal, a deceased testator’s capacity to make a will and form testamentary intent was questioned due to his state of mind. The testator, Croft, was noted to be suffering from delusions and hallucinations that may have influenced his decisions. A delusion, as defined by the court, is an ‘irrational, fixed and permanent belief out of which a person cannot be reasoned’.

The court heard that Croft’s final will distributed his $3.2 million estate solely to his sixth daughter, Anna, save for $40,000 that he gave to each of his other five daughters. The question here, was whether Croft was in such a mindset that he made a decision he did not truly understand or wish for in his will. The relevant evidence demonstrated that while Croft did have hallucinations, they were episodic and did not impair him in his decision-making or comprehension at the time his will was formed. Croft also suffered dementia, however, the executors of his estate were able to defend claims that his conditions did not deprive Croft of his capacity. As it turns out, a family lawsuit had caused Croft to favour his daughter, Anna, above his others, as she had supported him and taken his side. The case was favourable of Croft’s capacity and allowed his will to enter probate.

Notably, the above case does not represent the common outcome. Matters of testamentary capacity are usually not so easily solved where the testator suffered illnesses that impaired their mental health and memory. While the evidence may favour the testator and the court may rule in a positive manner for the estate, it is not a good thought to have capacity in question in the first place. In NSW, the Law Society has a set of guidelines that assist solicitors in determining a person’s capacity at the time of executing and creating a will. If you do create a will, your solicitor should be aware of these guidelines and follow them if necessary.

Further, there is a test that can assist in clarifying testamentary intent and capacity, as introduced by the 1870 case of Banks v Goodfellow.

The test asks if the testator understands:

  • what it means to be making a will;
  • what assets they possess and are leaving to others;
  • who the people are who could make a claim on the estate and what moral obligation is owed to those people

As is most often the case with dementia and mental impairment, not having an adequate grasp on reality deems a person incapable of fully understanding the concepts listed above. If you wish to protect your will at the time of its’ creation, it is always a good safeguard to have a qualified solicitor and health professional (typically a psychologist) assess your capacity. This way, it is difficult to dispute your capacity should it come into question after your death.

At the Quinn Group, ‘wills and estates’ is one of our areas of expertise. Over the past two weeks, we have explored topics including the risks of informal wills and what to do if you’ve lost an original will. For the month of March, we will explore another of our key areas: employment law. This is complemented by the upcoming release our book, ‘Everything you Need to Know about Employment and Contracting in Australia’, soon to be available in print and eBook formats.


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If you require any assistance in making your will, please feel free to contact our team of experienced lawyers by clicking here to submit an online enquiry form, calling us on 1300 QUINNS or alternatively, +61 2 9223 9166 to arrange a teleconference or appointment. You can also request our free Will Kit.