A properly signed will with witnesses may still be invalid if the person making it didn’t have the mental capacity to understand what they were doing. You can, however, challenge it in court and have it overturned; these are known as testamentary capacity cases.
At Securator Legal, we help families deal with these disputes when a will doesn’t reflect someone’s true intentions.
In this article, we’ll explain what testamentary capacity means in Queensland and show you the warning signs that suggest someone lacked capacity. You’ll also see how these challenges stretch out in the Supreme Court.
Ready? Let’s begin.
What Is Testamentary Capacity in QLD?
Testamentary capacity in Queensland means you must have a sound mind and mental capacity to understand the full effects of your will. It also involves knowing your assets as well as recognising family members with claims on your estate under the Succession Act 1981.
We’ll go through the process of determining your testamentary capacity.
The Banks v Goodfellow Test
When you make a will in Queensland, the law checks four things to decide if you had a clear understanding to do so. These requirements come from a 1870 English case called Banks v Goodfellow, and courts still rely on them today.
Here are the conditions:
- Understand the legal document: You’re creating a legal document that decides who gets your property after you die.
- Know what you own: Keep track of what you own, especially the big things like your home, bank accounts, and major possessions.
- Recognise your family: You must know who your relatives are and who might fairly expect something from your estate.
- Stay clear-headed: Keep your mind clear, and don’t let any false beliefs or confusion affect your decisions.
Missing even one of these points can raise doubts and make your will easier to challenge in court.
See also: The Role of AI in Enhancing Knowledge Management Strategies
Dementia and Cognitive Decline
This one surprises a lot of people, but having dementia doesn’t automatically mean you can’t make a valid will. That’s a common misconception, and Queensland law sees it differently.
The main question is whether you had clarity at the moment you signed your will. Because many people with early-stage dementia still understand precisely what they’re doing when they sit down to sort out their estate.
So, how do courts work in this case?
The court recognises that someone might have clearer moments during the day. For example, perhaps you’re sharper in the morning than in the afternoon.
Now, if you make your will during one of those clearer periods and can show that you understood what was happening, the will can still stand up in court.
What Are the Red Flags for Lacking Testamentary Capacity?
Red flags include making sudden or odd changes to those included in the will. It’s also concerning if the person forgets family or major assets, or if someone cuts them off or pressures them while they make their wish.
Let us explain everything in detail.
Sudden Unexplained Changes to Beneficiaries
Your dad’s will has always split everything equally between his three kids. Then suddenly, there’s a new version that cuts two of them out completely. What changed here?
Sometimes these modifications make perfect sense. For example, did one child look after him for years while the others didn’t bother visiting? Maybe that’s why he changed his final wishes (and honestly, who could blame him?).
But when there’s no reasonable explanation for such a dramatic alteration, it raises questions about whether the will reflects what he wanted or if something else was going on.
We’ve seen plenty of cases at Securator Legal where the final document ended up nothing like what the person had carefully planned before. Needless to say, those moments never end well and usually stir up a whole lot of stress and family tension.
Can’t Recall Family Members or Assets
If your mum can’t remember she owns a house in Paddington or has $150,000 sitting in the bank when she’s making her will, that’s a serious red flag.
The thing is, the testator doesn’t need to recite every account number or know the exact value of their jewellery collection. But at the very least, they should be able to recall what they own, like their home and savings, and know who their children are.
Isolation or Signs of Undue Influence
Isolation is when someone gets cut off from their usual support network, like family, friends, or even their long-time solicitor. Suddenly, a new person is always around, managing every visit and phone call, and no one else can get close.
But undue influence refers to a situation where that same person starts controlling decisions, specifically around the will. Take this, for example: a new ‘friend’ drives the testator everywhere, sits in on every chat, and even helps fill out a will kit at the kitchen table.
If that person ends up benefiting from the will, it’s a clear sign of undue influence (absolutely no two ways about it).
Pro tip: Make sure no one else speaks for the person making the document on their final wishes. Their voice should lead the conversation every single time.
How Is Testamentary Capacity Challenged in Court?
Challenging testamentary capacity helps protect your family from unfair outcomes and ensures that the estate goes to the people who should truly receive it. It’s all about stepping in when someone doesn’t have the mental clarity to make fair and thoughtful decisions.
Let’s take a look at how the process works and what steps you need to take.
Filing a Probate Caveat With the Supreme Court
If you think someone didn’t have the mental ability to make their will, you need to act quickly.
The first step is filing a probate caveat with the Supreme Court of Queensland. That stops the executor from getting probate and distributing the estate.
However, not everyone can challenge that. Usually, only certain people, like loved ones whose names are in previous documents, or people who would inherit if there were no will at all, can file.
More importantly, you’ll need to show the court that the deceased lacked the clarity to understand what they were doing when they signed.
Medical and Solicitor Evidence Reviewed
Once a challenge gets underway, the Supreme Court examines every piece of evidence it can find about the person’s mental state.
And medical evidence usually decides how these cases turn out. The court looks at doctor reports, hospital records, and any capacity assessments done around the time the will was signed. In particular, expert psychiatric evidence can explain exactly how conditions like dementia affected the person’s ability to make rational decisions at that specific moment.
Solicitor file notes tell another part of the story. If a lawyer prepared the document, their notes show what questions they asked and how the person responded.
At Securator Legal, we’ve found that having good documentation can save everyone a lot of heartbreak. Then, once you include family statements, it really ties everything together.
Outcomes if the Will Is Invalidated
When the court decides someone didn’t have the mental ability, that will no longer counts.
So, what happens after that?
If there’s an earlier document from when the person’s mind was still sound, that older version becomes the valid one instead. The estate gets distributed according to those previous instructions.
But if there’s no earlier will, the intestacy rules under the Succession Act step in. Basically, the law decides who gets what using a set formula, and sometimes that means the estate goes to people the person never meant to include (hard to accept, but the law just takes the wheel).
And you know what the saddest part is? These disputes typically drag on for months and tear families apart over who deserves what.
Tip: Try mediation before heading deep into court proceedings, because a peaceful conversation can save everyone a lot of pain.
Protecting Your Family’s Inheritance Rights
Testamentary capacity is about whether someone understood what they were doing at the moment they signed their will. And contrary to popular belief, cognitive decline doesn’t automatically invalidate a will. Rather, sudden changes, memory problems, and isolation are serious red flags that courts take seriously.
In this article, we’ve discussed what testamentary capacity means under Queensland law. You’ve also learned about the warning signs that suggest someone lacked clarity and how the court examines medical and solicitor evidence when someone challenges these wills.
If you’re worried about a will made by someone with cognitive decline, or you want to protect your own final wishes from future challenges, don’t wait until it’s too late. Contact Securator Legal today for professional advice on testamentary capacity disputes and estate planning.
Disclaimer: This article is for general informational purposes only and does not constitute legal advice. Every individual’s circumstances are unique, and the information provided may not apply to your specific situation. Securator Legal does not accept responsibility for any loss, cost, or damage incurred as a result of reliance on the material in this article. For tailored advice, we strongly recommend consulting a qualified legal professional before making any decisions regarding wills or estate planning.
