Do I Have The Mental Capacity To Make A Will?

The mental state and capacity of a person can be a vital element taken into consideration in the event that a court is asked to adjudicate a contestation of a will. Mental capacity relates to a person’s ability to understand what they are doing and that they are of sound mind and memory when creating a will.

Under Part III of the Succession Act (2006) NSW (the Act) challenges to a will via a family provisions claim may be made by ‘eligible persons’. Testamentary capacity of the testator (will maker) forms a particular area by which these claims are made. Where the court is required to adjudicate a claim with respect to the testamentary capacity of the testator, the ‘Banks v Goodfellow testwhich was set out in Banks v Goodfellow (1870) LR 5 QB 549, is applied. The Court outlined a number of principles which have formed the ‘test’ for mental capacity.

The basic principles which have stemmed from the case of Banks v Goodfellow relate to the testator’s:

  •   The ability to understand the nature of the will and its effect;
  •   The ability to understand the extent and nature of the property they are disposing of under the will; and
  •   The ability to be aware of the persons for whom the testator would usually be expected to provide (even if he chooses not to) and be free from any delusion of the mind that would cause him reason not to benefit these people. The recent case of Carr v Homersham [2018] NSWSC 65 saw the Supreme Court of Appeals deciding against a family provisions claim which was

brought before the Supreme Court in the first instance as a challenge of the testamentary capacity of a testatrix at the time that a Will was created. The Respondent, Ms Ann Richardson, argued that the Testatrix, Beryl Lee Hordern, lacked the requisite mental capacity at the time that her Will was drafted and executed. This Will was one which revoked her previous will and removed the Respondent as a beneficiary. She left the entirety of her estate to her friend and carer Cynthia Carr who was the Appellant in these proceedings.

The Supreme Court, in the first instance, ruled in favour of Ms Richardson finding that Ms Hordern was delusional at the time of creating her second Will and was deemed to have lacked the requisite testamentary capacity. However, on appeal, the Court of Appeals overruled that judgment finding that Ms Hordern was in fact well aware of her actions when she created the second Will in 2004 and upheld the appeal made by the Ms Carr.

A family provisions claim, particularly in relation to testamentary incapacity, can be overwhelming and difficult to understand, however, the friendly and experienced staff at LBC Lawyers can assist you with such matters.
We pride ourselves on ensuring that your matter is dealt with efficiently and professionally so that you can have peace of mind.

Aleksandar Cankulovski
LBC Lawyers