contesting or challenging a will based on lack of mental capacity or testamentary capacity

Challenging the Will of a deceased person (the testator) arises when an interested person believes that the testator’s Will is not legally valid.  One of the many reasons someone might challenge a Will is on the basis that the testator may have lacked testamentary capacity to execute their Will.

Challenging a Will on the basis that the testator did not have testamentary capacity at the time of executing their Will is especially common, if when the Will was executed, the testator was elderly, diagnosed with dementia (or showed signs of dementia) or was affected by any kind of medication or other substance misuse or illness.

In order for a Will to be valid, the testator must have testamentary capacity to make a Will.  The testator must have the mental capacity to understand the nature of making a Will, the extent of their assets, their obligations to provide for certain beneficiaries and how their Will distributes their estate.  Generally, before a Will is made, the testator’s medical practitioner can carry out a ‘test’ to determine whether the testator has the testamentary capacity to make a Will.  The test to make a Will was set out in the case of Banks v Goodfellow which held:

`It is essential that a testator shall understand the nature of his act and its effects; the extent of the property of which he is disposing; and shall be able to comprehend and appreciate the claims to which he ought to give effect, and, with a view to the latter object, that no disorder of mind shall poison his affections, pervert his sense of right, or his will in disposing of his property and bring about a disposal of it which, if his mind had been sound, would not have been made`

Challenging a Will on the basis that the testator lacked testamentary capacity will generally start with a ‘Probate Caveat’ being lodged by the person with the caveatable interest, or their legal representative, against the Executor’s Probate application, before the application is granted by the Supreme Court of Victoria.  You may have a caveatable interest if you are any of the following:

1.         A person named as a Beneficiary under the Will;

2.        A person who is not named as a Beneficiary under the Will but who would be entitled to inherit from the estate under the laws of intestacy.  This is a person who would inherit from the estate if the Will was invalid or there was no Will; or

3.         An individual who is an eligible person to make a claim under Part IV of the Administration and Probate Act 1958 (Vic).

A ‘Probate Caveat’ will stop a Probate application from being granted by the Supreme Court until the Caveators concerns are resolved.

If someone challenges that the testator lacked testamentary capacity at the time of executing the Will, they, or their Executor/s, will need to be able to produce evidence to support their argument and the Executor/s of the testator’s Will in return will need to produce evidence that demonstrates that the testator did in fact have testamentary capacity.  This can include medical records, medical certificates etc.  If there is a lack of evidence to support the mental capacity of the testator, the Supreme Court may invalidate the Will and any prior Will of the testator may need to be relied on and if there is no prior Will, then the law of intestacy will apply.

If you require advice or assistance to challenge the validity of a Will or you are an Executor and someone else has challenged the Will, please contact our office on (03) 9707 1155 or via email at admin@wslegal.com.au.