Chapter 4 - Capacity and wills

as amended by and current to 30 April 2021.

4.1 Introduction

As our society becomes richer and more and more people have real and personal property to leave when they die, and because of the likelihood of a great increase in the prevalence of dementia, it is likely that there will be many more people with cognitive disabilities making or changing their wills near the end of their lives. Some of these wills will be challenged. Some of these challenges will not have been anticipated. Consequently, it will sometimes be necessary to collect the evidence of the will-making capacity of the will-maker contemporaneously, if capacity is in doubt at the time the will is made, or retrospectively upon challenge after the will-maker’s death.

In this chapter we set out the law relating to will-making capacity, the technical name for which is “testamentary capacity” – a term we will avoid in this chapter. We also set out the law that has been developed to allow challenges to wills made when the will-maker has lacked capacity, where the will was made in suspicious circumstances or where the will was made as a result of undue influence. The chapter also sets out what is expected of solicitors when acting for people whose will-making capacity is in doubt. It also deals with the conditions which may lead to incapacity, the attitude of the courts to the evidence about a person’s will-making capacity and who gives that evidence and when and how they formed their opinions about that evidence.

Testamentary capacity [will-making capacity] is one of those mental functions that cross the legal and medical domains. It is both a legal concept and a specific focus of medical assessment. This blurring can cause considerable difficulties in the courts. Challenges are made on a legal basis yet evidence can be dependent upon expert psychiatric or medical assessment. Furthermore, on an international level, testamentary capacity is one of the few capacities that is almost entirely dependent on case law without much statutory direction.(1)

This quotation, from an important article by two Canadian psychiatrists and a lawyer, reflects part what we are attempting to do in this chapter. We describe the law relating to will-making capacity, derived mostly from the decided cases spanning the 19^th to 21^st centuries, and the increasing understanding of that matter from the medical perspective. We also set out how lawyers should act so as to ensure that their clients make valid wills thereby protecting their clients’ rights to distribute their assets according to their own wishes. We deal with how health professionals, acting as experts, can contribute appropriately and effectively to that process.

We have already noted that we call testamentary capacity “will-making capacity” in this chapter. We also call a testator or testatrix a “will-maker”; however we do not change those terms when they appear in any quotation from another source.

4.2 The classic statement of the law

In 1870, Cockburn CJ gave the judgment of the Court of Queen’s Bench comprising himself, Blackburn, Mellor and Hannen JJ in Banks v Goodfellow.(2). In it he laid down the test for will-making capacity which was adopted in Australia and other common law countries and has been reaffirmed many times in the 20^th and 21^st centuries.(3) Cockburn CJ said in relation to the capacity or power to make a will that:

It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; 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 prevent the exercise of his natural faculties - that no insane delusions shall influence his will in disposing his property and bring about a disposal of it which, if the mind had been sound, would not have been made.(4)

While Banks v Goodfellow continues to be a leading case, as will been seen more than once in this chapter, the law moves on. Recent court decisions in Australia have acknowledged the differences between the 19^th century context and today. One example is Kerr v Badran which highlighted the differences between 1870 and today on the issue of assets knowledge.(5) In that case Windeyer J said:

In dealing with the Banks v Goodfellow test it is, I think, necessary to bear in mind the differences between life in 1870 and life in 1995. The average expectation of life for reasonably affluent people in England in 1870 was probably less than 60 years and for others less well off under 50 years: the average life expectancy of male in Australia in 1995 was 75 years. Younger people can be expected to have a more accurate understanding of the value of money than older people. Younger people are less likely to suffer memory loss. When there were fewer deaths at advanced age, problems which arise with age, such as dementia, were less common. In England in 1870, if you had property it was likely to be lands or bonds or shares in railway companies or government backed enterprises. Investment in ordinary companies was far less common than now. Older people living today may well be aware that they own substantial shareholdings or substantial real estate, but yet may not have an accurate understanding of the value of those assets, nor for that matter the addresses of the real estate or the particular shareholdings which they have. Many people have handed over management of share portfolios and even real estate investments to advisors. They might be quite comfortable with what they have; they may understand that they have assets which can provide an acceptable income for them, but at the same time they may not have a proper understanding of the value of the assets which provide the income. They may however be well able to distribute those assets by will. I think that this needs to be kept in mind in 2004 when the requirement of knowing “the extent” of the estate is considered. This does not necessarily mean knowledge of each particular asset or knowledge of the value of that asset, or even a particular class of assets particularly when shares in private companies are part of the estate.(6)

In Banks v Goodfellow the jury had held, and the judges had agreed, that the will-maker, John Banks, was suffering from insane delusions. Nevertheless, his capacity and right to make a will was upheld. Cockburn CJ counseled:

No doubt, where the fact that the testator has been subject to any insane delusion is established, a will should be regarded with great distrust, and every presumption should in the first instance be made against it. Where insane delusion has once been shown to have existed, it may be difficult to say whether the mental disorder may not possibly have extended beyond the particular form or instance in which it manifested itself. It may be equally difficult to say how far the delusion may not have influenced the testator in the particular disposal of his property. And the presumption against a will made under such circumstances becomes additionally strong where the will is … one in which natural affection and claims of near relationship have been disregarded.(7)

Cockburn CJ went on to note that neither of the delusions that Banks suffered from namely that he was pursued by spirits and that a man long since dead came to molest him had “affected the general faculties of his mind, and could have no effect upon the will” and held that there was “no sufficient reason why the testator should be held to have lost his right to make a will, or why a will made under these circumstances should not be upheld”.(8)

Consequently, Banks v Goodfellow not only lays down the test for will-making capacity, but also makes it clear that a partial unsoundness of mind, not affecting the person’s general faculties and not operating on the person’s mind in regard to a particular testamentary disposition, will not be sufficient to deprive the person of the power to dispose of their property in a will.(9) For an example of a case of a “prolific” will-maker who was held to lack will-making capacity in relation to a particular will because of an unfounded and irrational belief that was persistently held despite overwhelming proof of its falsity, see Bull v Fulton.(10) However, as Gleeson CJ has pointed out, “the law treats as critical the distinction between mere antipathy, albeit unreasonable, towards one who has a claim, and a judgment which is affected by disorder of the mind”.(11)

Also, in a 2016 case in the Supreme Court of Western Australia Chaney J, relying on Bull v Fulton, pointed out that where a will-maker suffers from delusions, the onus is on those supporting the will to show that the delusion did not influence the will.(12) He also pointed out that, in Bull v Fulton, Chief Justice Latham noted that it was sufficient to satisfy the court that it was a reasonable inference from the facts that a delusion which existed did not affect the disposition in question. He also noted that the requirement for satisfaction is the civil standard of proof, was on the balance of probabilities.(13)

In the 2016 case Chaney J had two wills to consider, one made in 2006 and the other in 2009. In relation to the 2006 will, he did not consider that any of the materials submitted by [the plaintiffs], nor anything said by way of submission, was capable of supporting a conclusion that [the will-maker] suffered any delusions which would deprive her of testamentary capacity in 2006. However in relation to the 2009 will, after a consideration of the evidence about the will-maker’s will-making capacity when she made the 2009 will, Chaney J was satisfied that, the will-maker's delusional beliefs concerning her son infected her will-making capacity and influenced her decisions as to the disposition of her property reflected in her 2009 will. Consequently he was satisfied that the 2009 will was not a valid will.(14) It is worth noting that the 2016 case involved the evidence of at least seven doctors and a discharge summary and progress notes from the will-maker’s hospital admission in 2008.

In a 2018 case, the New South Wales Court of Appeal made it clear that a will-maker’s “material false belief”, although unfounded in fact did not mean that the will-maker was “delusional” and thus lacking will-making capacity. The will-maker expressed this material false belief to the solicitor she was instructing to change her will as the reason for disinheriting her niece and leaving all her estate to her cleaner and carer, who had become her friend.(15) In that case Basten JA, with whom Leeming JA agreed, suggested that the change of will was probably in part the result of a falling out with niece, the particular cause of which was unclear, combined with the appreciation that her niece was not in need. The cause of the change was not shown to be the immediate product of any mental disorder. (16) Basten JA also noted that the fact that the primary judge accepted Ms Richardson’s evidence that the reason expressed by the testator was unfounded in fact does not mean that the testator was “delusional”.(17) He then went on to state:

A court must be vigilant against drawing such a link on the basis of its view that the judgment exercised by the testator, founded upon a false recollection of the reason for her antipathy, was quite unreasonable. Accepting that it raised a relevant doubt, a careful analysis of the whole of the evidence showed that there was no proper evidential basis to conclude that an irrationally based antipathy towards her adult niece warranted a finding of testamentary incapacity. The doubt should be rejected as insubstantial.(18)

Turning now to the ability of the will-maker to comprehend and appreciate the claims to which the will-maker ought to give effect aspect of the test for will-making capacity, White J of the Supreme Court of New South Wales pointed out in a 2015 case that:

Proof of testamentary capacity requires proof that the testator was capable of evaluating the claims on his testamentary bounty, but it is not a general requirement of a valid will that the testator actually made such an evaluation.(19) It is sometimes said that to have testamentary capacity the testator or testatrix must, amongst other things, be aware of those who might reasonably be thought to have claims on his or her bounty and the basis for and nature of those claims, as well as having the ability to evaluate and discriminate between the respective strengths of the claims.(20) But in determining testamentary capacity the critical question is not whether the will-maker did in fact bring to mind those who might reasonably be thought to have claims upon his or her bounty, but whether he or she had the ability to do so.(21)

White J went on quote from case of the Judicial Committee even older than Banks v Goodfellow. Erskine J delivering the advice (judgment) of the Privy Council in 1840 said Harwood v Baker:

[T]heir Lordships are of opinion, that in order to constitute a sound disposing mind, a Testator must not only be able to understand that he is by his Will giving the whole of his property to one object of his regard; but that he must also have capacity to comprehend the extent of his property, and the nature of the claims of others, whom, by his Will, he is excluding from all participation in that property; and that the protection of the law is in no cases more needed, than it is in those where the mind has been too much enfeebled to comprehend more objects than one, and most especially when that one object may be so forced upon the attention of the invalid, as to shut out all others that might require consideration; and therefore, the question which their Lordships propose to decide in this case, is not whether Mr Baker knew when he was giving all his property to his wife, and excluding all his other relations from any share in it, but whether he was at that time capable of recollecting who those relations were, of understanding their respective claims upon his regard and bounty, and of deliberately forming an intelligent purpose of excluding them from any share of his property.(22)

We note that this judgment from 1840, at a time when little was understood about neuroscience and cognition, was astoundingly prescient and insightful regarding the loss of working memory and its impact on decision-making. Namely, we now know, that loss of working memory – usually as a result of frontal lobe impairment associated with dementia - causes just that, an inability “to comprehend more objects [sic: of one’s bounty] than one,” particularly “when that one object may be so forced upon the attention of the invalid, as to shut out all others that might require consideration”. This is also a fertile ground for undue influence, as will be discussed in 4.7 below. White J also noted that, in a 2014 case, the England and Wales Court of Appeal had stated that will-making capacity depended on the potential to understand and is not to be equated with a test of memory.(23)

As to a solicitor’s obligations in relation to this matter see 4.4; and for other aspects of the “objects of bounty” issue see below at 4.9.5.5 and 6.

Banks v Goodfellow remains the leading case on capacity to make a will after 140 years, not only because of the common law’s reliance on precedent to ensure consistency in the application of the law, but also because of the lawyer’s love of flowery phrases which attract attention to the way the test is stated in that case. Nevertheless, the common law moves on in the light of new knowledge and understanding of medical and psychological matters. In a breakthrough case arising from a person developing a psychiatric condition as a result of shock caused by an accident at work, Windeyer J noted “Law marching with medicine but in the rear and limping a little….” (24) Earlier, in a leading case on will-making capacity, Timbury v Coffee, a case of a will-maker who drank himself into a state of physical exhaustion and mental disturbance, Dixon J noted that:

We are not bound to go on applying views held over a century ago about mental disturbance and insanity and to disregard modern knowledge and understanding of such conditions.(25)

It has been suggested recently that the law is limping too far behind medicine in relation to the assessment of will-making capacity.(26)

Some catching up was done in the English Court of Chancery in 2010 when Briggs J stated the following:

Without in any way detracting from the continuing authority of Banks v. Goodfellow, it must be recognised that psychiatric medicine has come a long way since 1870 in recognising an ever widening range of circumstances now regarded as sufficient at least to give rise to a risk of mental disorder, sufficient to deprive a patient of the power of rational decision making, quite distinctly from old age and infirmity. The mental shock of witnessing an injury to a loved one is an example recognised by the law, and the affective disorder which may be caused by bereavement is an example recognised by psychiatrists….(27)

One of the expert witness psychiatrists in the case described the symptomatic effect of bereavement as capable of being almost identical to that associated with severe depression. Having noted this, Briggs J continued:

Accordingly, although neither I nor counsel has found any reported case dealing with the effect of bereavement on testamentary capacity, the Banks v. Goodfellow test must be applied so as to accommodate this, among other factors capable of impairing testamentary capacity, in a way in which, perhaps, the court would have found difficult to recognise in the 19^th century.(28)

4.3 The present day requirements for will-making capacity

Will-makers must be of sound mind, memory and understanding to make a valid will. What is required of them is that they:

1. understand the nature and effect of a will;
2. know the nature and extent of their property(29)
3. comprehend and appreciate the claims to which they ought to give effect; and
4. are not affected by delusions that influence the disposal of their assets at the time they are making their will.(30)

Clearly, these basic elements, derived from Banks v Goodfellow, have not changed. However, the way in which we apply these elements to the determination of will-making capacity has changed. Our understanding of conditions such as dementia - which predominates as the leading cause of mental disturbance interfering with will-making capacity today – has evolved. In particular, our understanding of the ways in which such conditions impact on a person’s ability to know, comprehend and appreciate has become more sophisticated and complex, as will be discussed in this chapter.

Sometimes the question arises, did the will-maker lose their will-making capacity between the time they gave instructions for the will and when they signed the will? That issue has been settled since 1883 by the courts in England and Australia taking the following approach. If the will-maker had will-making capacity when they gave instructions for the will and believed that the will, as drafted, reflected those instructions, and that was true as a matter of fact and they executed the will in that belief, the will was valid and would be admitted to probate.(31)

In 2010, a unanimous England and Wales Court of Appeal confirmed that approach.(32) In that case, Moore-Bick LJ pointed out that unless there was reason to question it, proof of will-making capacity and the execution of the will were sufficient to establish knowledge and approval of its contents. Furthermore, it could normally be accepted that a person of sound mind was capable of disposing of their property and intended to do so in the manner set out in the will. Consequently, in such cases it was irrelevant to enquire whether the will-maker lacked capacity at the time when they gave the instructions, whether those instructions continued to reflect their intentions or whether they realised that the will gave effect to those instructions. It is enough that the will-maker was capable of making the decision at the time they executed the will document.

However, Moore-Bick LJ went on to state that where a will-maker loses some of their faculties between giving instructions and executing the will, the position is different. He continued:

One must then ask (i) whether at the time [the will-maker] gave the instructions he had the ability to understand and give proper consideration to the various matters which are called for, that is, whether he had [will-making] capacity, (ii) whether the document gives effect to his instructions, (iii) whether those instructions continued to reflect his intentions and (iv) whether at the time he executed the will he knew what he was doing and thus had sufficient mental capacity to carry out the juristic act which that involves. If all those questions can be answered in the affirmative, one can be satisfied that the will accurately reflects the deceased's intentions formed at a time when he was capable of making fully informed decisions.(33)

In the opinion of Moore-Bick LJ, that was what Parker v Felgate decided.(34) Nevertheless, in the 2010 case of Brown v Wade, Simmonds J of the WA Supreme Court, relying on textbook and case law authority noted that if the will-maker had capacity at the time he or she gave instructions for their will to the solicitor, but lacked capacity at the time of execution of the will, the crucial time at which the will-maker must have had will-making capacity was the time they gave the instructions, not the date of the execution of the will. But where the instructions were not given by the testator directly to the solicitor, the law appears to be that the relevant date is that of the execution of the will, unless the court can be satisfied there is no ground for suspicion, and there are unambiguous instructions to the intermediary clearly understood by that person and faithful reporting of the instructions correctly understood by the solicitor.(35)

In 1911 in the Supreme Court of Victoria, a’Beckett J took the view “speaking generally” that the same considerations or the same class of considerations applied to capacity to revoking a will.(36) In 1996, Young J of the NSW Supreme Court followed a’Beckett J’s approach noting that will-makers, when revoking a will, will often be putting their minds to the same matters as they should when making a will.(37) In 2010, Simmonds J of the WA Supreme Court adopted a’Beckett J’s “general proposition” as to the applicable law and found that the plaintiff had not discharged his burden of proof to show that the will-maker had the capacity to revoke a recently made will.(38) In a 2012 case in the NSW Supreme Court, White J appeared to be of the same view.(39)

However in a 2010 case and in the 2012 case just referred to, White J took the view that in the context of the revocation of a specific gift in a will, it was not necessary that the will-maker have the capacity to appreciate the general nature and extent of their estate and be able to weigh the claims of all persons who might then be potential objects of their testamentary bounty. In principle, it should be enough that the will-maker was capable of making a judgment as to whether the person deserved to be excluded from the will.(40)

For a 2017 discussion of the Banks v Goodfellow test in the Supreme Court of South Australia and for the view that certain decisions of the Supreme Court of New South Wales were best understood as an attempt to state that test in contemporary language see Roche v Roche & Anor.(41)

In a 2020 case in which the will-maker suffered, in 1979 at the age of 16, a catastrophic head injury, which brought about severe changes in his personality and intellect that were both permanent and constant. The will-maker, William, made a number of wills, but it was the second last will dated 21 December 2011 and the last will dated 22 April 2016 that were in contention for admission to probate. After considering the evidence of William’s capacity and of his life, Robb J stated:

While the Court cannot ignore the devastating consequences of the brain injury that William suffered when he was 16, the evidence of the consequences of that injury to William’s cognitive capacity and his personality does not require a finding that William lacked testamentary capacity on the Banks v Goodfellow test. The making of his last will did not require William to exercise the sustained application, foresight, prudence and ability to plan ahead of which he had been deprived by his brain injury. Knowing of his declining health, he only needed to understand the need to properly weigh the claims of the persons who had a call on his estate. That is something that could be done in the present using the residual cognitive abilities of a person of above average intelligence. Ample proof of William’s cognitive capacity to achieve a properly balanced and just testamentary disposition is found in the fact that that is exactly what he achieved.(42)

In the 2021 case Estate Rofe, Lindsay J of the Supreme Court of New South Wales, set out a discussion of the general principles to be applied when dealing with the question of who should administer the will of a deceased person in Australia.(43) The discussion deals with the framework of decision-making, will-making (testamentary) capacity, knowledge and approval, undue influence and fraud in relation to 12 wills. The case was decided on the basis of the currently established law and gives thorough consideration to the substantial amount of evidence given.

4.3.1 The process of determining capacity

The requirements for will-making capacity just set out in 4.3 above are well established and so is the process for determining will-making capacity when the will-making capacity of the will-maker is challenged in court. In a 2017 case Kunc J of the New South Wales Supreme Court set out that process in a form that is summarised below.(44) The case involved two sets of proceedings that the parties agreed to be heard together. They also agreed on the process for deciding the question of the will-making capacity of the will-maker at the times he made two different wills. This was done by resolving the following three questions: 1. Is the will rational on its face and duly executed? 2. Are there circumstances which raise a doubt about the existence of will-making capacity? 3. If the answer to question 2 is “yes,” has the person seeking probate (or defending an existing grant of probate) satisfied the Court — on the balance of probabilities (as understood by reference to the Evidence Act 1995 (NSW) s 140(2)) — that, at the time of making the will, the will-maker had testamentary (will-making) capacity?(45)

The parties (and Kunc J) were satisfied both wills were rational on their face and duly (properly) executed. However there was no agreement as to questions 2 and 3.That meant that the Court had to consider the will-maker’s competence at the time he made both wills. The starting point is the long established principle that there is a presumption that the will-maker has will-making capacity at the time they make a will. However that presumption can be rebutted (set aside) by evidence that raises doubt about the will-maker having will-making capacity at the time they made the will or wills under challenge. If the presumption is rebutted, then the person seeking probate has to prove, on the balance of probabilities as described above (in question 3) that the will-maker did have that capacity.(46)

In this case Kunc J found, in relation to both wills, first that the evidence was not only sufficient to rebut the presumption of capacity but also that it was such that the person defending the grant of probate to him in relation to the last will was unable to satisfy him (Kunc J) on the balance of probabilities (recognising the seriousness of the matter to be proved) that the will-maker had will-making capacity at the time he executed either of the wills.(47)

In most cases in which a will or some wills made by a elderly person late in life are challenged, there is little contemporaneous evidence relevant to the will-maker’s will-making capacity. However, there was such evidence in this case because of the medical reports relating to the significant brain injury he received in a motor vehicle accident 16 months before the first of the two challenged wills.(48)

While Kunc J said that the evidence as a whole in the case raised a doubt in his mind as to whether the will-maker had will-making capacity at the time each will was made, he reached that conclusion primarily, but not exclusively, by reference to the extensive contemporaneous medical reports in relation to the will-maker.(49)

He then pointed out that the person defending the grant of probate to him in relation to the last will was unable to satisfy the him on the balance of probabilities that the will-maker had will-making capacity at the time he executed either of the wills was for three reasons. First, primarily but not exclusively, because of, the contemporaneous medical records about the will-maker’s cognitive ability. Second, because the absence of reliable, independent witnesses as to the will-maker’s capacity. Third, because of the inability of the solicitor who prepared and witnessed both wills to satisfy the him (Kunc J) on his evidence that the will-maker had will-making capacity at the relevant times.(50)

The medical evidence in this case was not only about the will-maker’s traumatic brain injury from which inferences could be drawn, but included evidence from medical and other health practitioners directly about the will-maker’s will-making capacity in relation to both wills. This was is direct contrast with the poor quality of, or absence of records kept by the solicitors involved in the making of the wills.(51)

Kunc J noted that he had three kinds of evidence before him. The first, there was the contemporaneous medical assessments and other records. The second was expert evidence that specifically addressed the question of testamentary capacity. The third was the lay evidence directed to the same issue. Then he noted that his conclusions were primarily, but not exclusively, based on the contemporary records. He pointed out that no party suggested that any of those records were less than truthful and accurate. He considered that the representations of fact or of opinion set out in those contemporary records were reliable and accepted them as such.(52)

In this case Kunc J noted that several lay witnesses were called to give their recollections of the will-maker at the time the two wills were made. However he also noted that their evidence, apart from their contemporaneous documents played little part in his consideration. Nevertheless he summarised that evidence and his consequent findings in his judgment.(53)

Unusually, in this case, there was a great deal of evidence contemporaneous with the making of the wills. In addition there were medical and other health professionals available to give evidence of not only their observations of the will-maker after he had received his traumatic brain injury, but also their expert opinions about his will-making capacity at the time he made the wills under challenge. Often when wills are contested there is little or no contemporaneous evidence from health practitioners who have put their mind to the matter of will-making capacity at that time, or who had the requisite expertise to offer opinion about will-making capacity. Consequently the best, and sometimes only source of reliable evidence about the will-maker’s will-making capacity to make a contested will is a psychiatrist or psychologist, with expertise in giving retrospective opinions after the death of the will-maker. We deal with the matter of expert opinions about will-making capacity, both contemporaneous and retrospective in 4.9.4 and 4.9.5 below. As has already been noted, Kunc J gave little weight to the evidence of family members in this case.(54) Nevertheless the evidence of lay witnesses about the will-maker at the time they made the will or wills in dispute, is often given considerable weight – perhaps because it is the only evidence available.

However coming back to the question of retrospective assessment of a will-maker’s will-making capacity, a reason often given for discounting the evidence of expert witnesses who make retrospective assessments of that capacity is that they never met the person. In this regard the following statement by Hodgson JA of the New South Wales Court of Appeal is sometimes quoted:

The criteria in Banks v Goodfellow are not matters that are directly medical questions, in the way that a question whether a person is suffering from cancer is a medical question. They are matters for commonsense judicial judgment on the basis of the whole of the evidence. Medical evidence as to the medical condition of a deceased may of course be highly relevant, and may sometimes directly support or deny a capacity in the deceased to have understanding of the matters in the Banks v Goodfellow criteria. However, evidence of such understanding may come from non-expert witnesses. Indeed, perhaps the most compelling evidence of understanding would be reliable evidence (for example, a tape recording) of a detailed conversation with the deceased at this time of the will displaying understanding of the deceased’s assets, the deceased’s family and the effect of the will. It is extremely unlikely that medical evidence that the deceased did not understand these things would overcome the effect of evidence of such a conversation.(55)

In a 2017 case the New South Wales Court of Appeal noted that the same approach was taken by the trial judge in a case under appeal.(56) In that case the three judges, in their joint opinion noted that:

However, it is one thing for a person to convey the appearance of full cognitive competence in ordinary conversations; it is another for the person to have testamentary capacity.(57)

In that case there was evidence about the will-maker’s will-making capacity from members of her family, hospital records, contemporary medical notes and expert opinions from a specialist geriatrician and a clinical neuropsychologist. After considering that evidence, the trial judge found that notwithstanding there being some room for doubt, that the on the balance of probabilities the will-maker had sufficient testamentary capacity when she changed her will so that her five grand-daughters did not inherit all her estate in equal shares, but a Church and a charity did.(58)

The Court of Appeal noted that the clinical psychologist did not, in either his written or oral evidence positively say that the will-maker had will-making capacity at the relevant time. Nor did he say that she did not. The Court of Appeal considered that his position seemed to have been that he had a real doubt about whether, at the relevant time, she had capacity to consider the claims [of her grandchildren] upon her bounty.(59) On the other hand, the specialist geriatrician considered, putting his views in a positive rather than negative way, that the will-maker was not properly able, “to recall all her grandchildren, their involvement with her over many years, her previous wills et cetera”, and that she had changed her will, “without much consideration of all those factors”.(60) This, and other evidence led the Court of Appeal to conclude that the will-maker lacked the will-making capacity to make the three wills that made the Church and the charity the beneficiaries of the will-maker’s estate and left nothing to her five grandchildren.(61)

A 2018 decision of the Supreme Court of Western Australia provides a good example of a case in which a retrospective assessment, by a psychiatrist, of a will-maker, who made her (final) will in 1993, 21 years before her death.(62) The will was challenged, when probate of it was sought in the Supreme Court. The basis of the challenge was that she lacked will-making capacity when she made the will. The challenger was the woman’s only child, a son. He was born in 1962. His parents split up in in 1982, and his father left the matrimonial home. Acrimonious divorce proceedings began. The son, N, was living with his mother in the matrimonial home; but after a row with her, he left home. There was some contact with his mother after that and she asked him to return home. He declined. She then told him, in effect, that if he did not return to live at home he would get nothing under her will. He did not return, but tried in many ways to keep in contact with his mother. She rebuffed these approaches and in 1993 had what was her final will drawn up and properly executed by her. In that will she left effectively all of her estate to a person she barely knew; and nothing to her son, and on the evidence, the only “object of her bounty”.

The most significant evidence about the will-maker’s will-making capacity at the time she made her will in 1993, was a retrospective opinion from a highly qualified psychiatrist. He had never examined the will-maker, nor had he had the benefit of a discussion with the will-maker’s (retired) general practitioner, or with any friends who had known the will-maker during her lifetime. Nevertheless, he had some of the will-maker’s medical records. Kenneth Martin J noted that this material provided; “a rather clinical and one dimensional perspective towards a patient's full life and character”. Necessarily the psychiatrist’s psychiatric reports about the will-maker were, again, as Kenneth Martin J pointed out; “prepared upon the sterile basis of a non holistic and limited perspective presented to him concerning the will-maker's life.” However, the psychiatrist had an extensive amount of documentary evidence, including a significant bundle of diary entries, concerning the will-maker's activities over the 21 years after she had made her will in April 1993, up to a time of her death in 2014.

The psychiatrist accepted that that material was only relevant in assessing mental disorders to the extent that it cast some light back towards will-makers mental state at the time she had made her April 1993 will. Nevertheless, Kenneth Martin J found the psychiatrist’s evidence persuasive, and accepted that evidence of incidents concerning the will-maker's behaviour post April 1993, provided useful insights towards her likely state of mental health at April 1993. This led the judge to state that, “With the benefit of hindsight, these insights could be appreciated by a treating physician to detect earlier conduct indicative of a progressive scale of mental health deterioration, ultimately confirming for the psychiatrist in his conclusions about the will-maker's mental health as at April 1993.”

The psychiatrist was certain that the will-maker had schizophrenia at the time of her death in 2014. His view was that it was a disorder that progressed over time. Consequently, “the natural history of the illness” made him conclude that; “in all probability, but certainly not with certainty in all probability, more likely than not”, the will-maker actually had psychotic symptoms in the early 1990s.(63)

Although Kenneth Martin J noted that the psychiatrist’s evidence was, “a rather clinical and one dimensional perspective towards a patient's full life and character “ and, “prepared upon the sterile basis of a non holistic and limited perspective presented to him concerning the will-maker's life”; he accepted that uncontradicted evidence as reliable.(64) Furthermore that evidence, particularly the psychiatrist’s findings that the will-maker had schizophrenia when she died and that it was more likely than not she had psychotic symptoms in the early 1990s allowed the judge to use evidence of the will-maker’s sister and son make findings that the will-maker was afflicted by a disorder of the mind when she made her will in April 1993. That disorder, “coloured [the will-maker’s] ability in April 1993 to form any rational assessment about [her son]”.(65) Also the judge concluded that the will-maker was suffering from an auditory delusion of the mind in April 1993 and that, “she laboured under the misapprehension that her late father had been speaking to her from the grave in terms adverse to her son”.(66) We note as an aside that a delusion is belief, while a hallucination is an abnormal perception (e.g. hearing voices) such that it is likely that this represented an auditory hallucination, and not an “auditory delusion”. Nonetheless, all this led the judge to conclude that it had been proved on the balance of probabilities that as at 27 April 1993, when the will-maker came to execute her last will and testament, she was then incapable of forming a rational view of her only child’s position, to use the terminology of the old cases, as an 'object of her bounty' and, consequently, lacked will-making capacity.(67)

As already noted, there is more on the matter of expert opinions about will-making capacity, both contemporaneous and retrospective in 4.9.4 and 4.9.5 below.

4.4 The responsibilities of lawyers when taking instructions for and seeing to the execution of wills where the will-making capacity of the will-maker is in doubt

The responsibilities of lawyers when taking instructions for and seeing to the execution of wills where the will-making capacity of the will-maker is in doubt have been the subject of discussion in the case law of the common law world as well as in well-respected texts for 200 years. However in 2017, Slattery J and Kunc J of the Supreme Court of New South Wales took time in their judgments in separate cases to summarise the process that solicitors should follow when asked (instructed) by a client to draft a will for them when the will-making (testamentary) capacity of their client is in doubt. (68)

Kunc J noted that questions of will-making (testamentary) capacity were necessarily fact sensitive, and that no rule or procedure will cover every case to avoid the possibility of litigation. However he also noted that; “nevertheless, the effort involved in paying attention to questions of capacity at the time instructions for a will are taken and the will is executed (including, where necessary, obtaining an assessment of the client where it is thought one is called for) pales into insignificance with the expense, delay and anxiety caused by litigation after the testator’s death”. (69)

Slattery J went straight into the matter stating that a solicitor’s duties in taking instructions for, preparing or witnessing the execution of a will were; “well-established” and gave his summary of what had been established by the case law and the textbooks.(70) Kunc J placed his advice in the context of the need for continuing legal education on questions of capacity. (71)

His first point was that the solicitor should attend on the will-maker on their own, personally and fully question them to determine capacity. Those questions should go to whether the will-maker understands that they are making a will and the effects of the will, the extent of the property to be disposed, and the claims which they should give effect to;(72)

Kunc J agreed that the client should always be interviewed alone. He also noted that if an interpreter is required, ideally the interpreter should not be a family member or a proposed beneficiary. He also advised that, in all cases instructions should be sought by non-leading questions such as: Who are your family members? What are your assets? To whom do you want to leave your assets? Why have you chosen to do it that way? The questions and answers should be carefully recorded in a file note. By that he meant that “full file notes” should be kept (73) For a 2020 case were the lawyer’s approach to taking instructions was inconsistent with “contemporary approaches” to taking instructions by giving “attention to the essential elements of testamentary capacity’, referred to as Kunc J’s “basic precautions,” see (74)

He also warned that a solicitor should always consider capacity and the possibility of undue influence, if only to dismiss it in most cases.(75) However he took the matter of capacity and the possibility of undue influence further. He was clearly of the view that, in case of anyone over 70, being cared for by someone, a person who resides in a nursing home or similar facility or about whom for any other reason the solicitor might have concern about capacity, then the solicitor should ask the client and their carer or a care manager in the home or facility whether there is any reason to be concerned about capacity including as a result of any diagnosis, behaviour, medication or the like. Again, full file notes should be kept recording the information which the solicitor obtained, and from whom, in answer to such inquiries.(76)

Slattery J’s second point was that one or more persons, other than the solicitor taking instructions from the client, should be present. These persons should be chosen by the solicitor with regard to their calibre as a witness should will-making capacity be challenged. Slattery J went on to state that, where possible, this witness should be a medical practitioner, preferably the treating doctor of the will-maker, and who is familiar with the will-maker (77). Third, “being familiar with the will-maker” does not equate with expertise in capacity assessment. The client’s general practitioner may not be qualified by expertise and professional knowledge to give an expert opinion on the matter. Having said this, the contemporaneous documentation of capacity, as proximate as possible either to the giving of instructions or execution of the will, is ideal. We note that with a strong collaborative relationship between the solicitor and the health care professional, this might mean that in some cases instructions are not taken or the will is not executed. Slattery J’s third point was that a detailed written record should be made by the solicitor, which included the results of the examination recorded by the medical practitioner and the notes made by those present.(78) We agree that adequate documentation by solicitors of their own observations in line with the kind of inquiry recommended by Kunc J is important. However, reports of assessments of capacity by health care practitioners need to be separately provided to the solicitor by the heath care professional and not recorded by solicitor.

Kunc J’s view on this matter was similar to that of Slattery J. However he suggested that where there was any doubt about a client’s capacity, then the questioning by non-leading questions above should be repeated when presenting the draft will to the client for signing. He also noted that the practice of simply reading the provisions to a client and seeking their assent should be avoided.(79)

Slattery J’s fourth point was that, if after the processes for testing the client’s will-making capacity he had proposed, which are set out above had been carried out, and after careful consideration of the circumstances by the solicitor taking the instructions, the solicitor was not satisfied that the will-maker did not have will-making capacity, (note the double negative) the solicitor should proceed and prepare the will. Slattery J also noted that it was good practice for the solicitor who took the instructions to prepare the will and be present upon its execution (signing). He also stated that detailed notes should be taken at every stage of the (will-making) process.(80)

However Slattery J then referred to Santow J’s advice in the Pates Case that if real doubt remained, following the solicitor’s consideration of the (the client’s answers to questions during the taking of instructions and the views of the witnesses attending that stage about the client’s will-making capacity), further steps may be desirable, including a more thorough medical appraisal.(81)

Perhaps what encouraged Slattery J to point out that solicitors’ duties “for the taking instructions for, preparing, or witnessing the execution of, a will are well-established” was because the solicitor in the case he was deciding did not question the (client) will-maker either at the instructions-taking interview or at the time the will was executed in ways that would test the will-maker’s will-making capacity. Nor did she ask her client questions to ascertain his understanding of the extent of his estate. In addition to that she was unaware of a number of background facts about the deceased’s health that may well have led her on a path to engage a medical practitioner to examine the deceased to obtain an opinion about his testamentary capacity.

However, having noted these omissions from good practice, Slattery J went on to state that; “even if there are omissions from good practice a will may still be admitted to probate” and to admit the will involved to probate.(82)

Nevertheless, it is important to note that, in another 2017 case, this time from Queensland, D G Thomas J, when he was the President of the Queensland Civil and Administrative Tribunal, found a solicitor who had made similar omissions, but also took instructions for drafting the will from the will-maker’s brother-in-law, guilty of unprofessional conduct and ordered that he be publically reprimanded and fined $2000.(83)

How the current law on this issue developed over the last 200 years, approximately, is set out in the rest of this section.

In 1841 in the first edition of Jarman on Wills, Mr Jarman wrote, and it was repeated in all subsequent editions:

Few of the duties which devolve upon a solicitor, more imperatively call for the exercise of a sound, discriminating, and well-informed judgment, than that of taking instructions for wills.(84)

He completed his Suggestions to persons taking instructions for Wills by referring the “admonishing of professional gentlemen generally” of Sir John Nicoll in the Prerogative Court in 1822 that:

[W]here instructions for a will are given by a party not being the proposed testator – a fortiori where by an interested party – it is their bounden duty to satisfy themselves thoroughly, either in person or by the instrumentality of some confidential agent, as to the proposed testator’s volition and capacity – or in other words, that the instrument expresses the real testamentary intentions of a capable testator – prior to its being executed ….(85)

In a 1962 case, In the estate of Tucker, Deceased, Mayo J of the Supreme Court of South Australia warned against taking instructions to make a will by post.(86) In that case Mr Tucker asked a trustee company to draw up a new will for him as he intended to marry a certain person. The will was drafted and returned to him for execution after his marriage. Mr Tucker executed the will but did not marry. Inquiries made after his death showed that at the time he executed the will he was suffering from delusions. He believed that someone was trying to poison him and he was under the delusion that the beneficiary of that will had actually become his wife. The trustee company did not seek probate of that will, but obtained probate of an earlier will. Mayo J noted the likelihood of this problem being avoided if a local agent of the trustee company had been engaged to obtain instructions.(87)

In 1994 in New South Wales, Santow J set out some observations in the hope of reducing the number of cases coming to the Supreme Court based on the lack of will-making capacity of the will-maker.(88) First, he confirmed that: “The essence of a solicitor’s fiduciary obligation to a client is the unfettered service of that client’s interests”(89) He then noted the real possibility of a conflict of interest for a solicitor who receives instructions from an established client to prepare a will on behalf of another person, particularly when the established client is to be a principal or major beneficiary under the will. He cautioned against acting for more than one of the parties in these circumstances.(90)

Santow J went on to state that duty of a solicitor when taking instructions from “an obviously enfeebled testator, where testamentary capacity is potentially in doubt” is to take particular care “to gain reasonable assurance as to the testamentary capacity of the testator”.(91) He noted that “any suggestion that someone, potentially interested has instigated the will, whether or not a client of the will draftsperson, should particularly place the solicitor concerned on the alert”.(92) Caution in such a situation is well advised. In Chapter 2.2 and 2.3.1, we have discussed how the procurement of a will – or indeed any legal document - in such circumstances may be an indicator of influence, particularly if the will-maker is cognitively impaired.

Although Sir John Nicoll, Jarman and Mayo J refer to the possibility of using agents, Santow J suggested that the solicitor who is to draft the will should attend the will-maker personally. The solicitor should question the will-maker fully to determine their capacity with the questions directed to ascertain whether the will-maker understands that they are making a will, what the effect of a will is, the extent of the property they are disposing of and the claims to which they ought to give effect – in other words the Banks v Goodfellow test.(93)

Santow J also suggested that the solicitor should arrange for one or two other people to be present who have been chosen for “their calibre as witnesses” as to the will-maker’s capacity should that issue be raised later. No one else should be present except with the consent of the will-maker. Where possible, one of these witnesses should be a doctor, one who has been treating and is familiar with the will-maker.(94)

Santow J suggested that this doctor too should question the will-maker in detail, thoroughly examine the will-maker’s condition, and advise the solicitor as to the capacity and understanding of the will-maker.(95)

There is a developing expectation that if doctors are asked to act as witnesses to the signing of significant documents such as wills, they will go beyond just observing the person signing the document and assure themselves that the person understands the nature of the document they are signing and its consequences. Although the Medical Board of Victoria did not find that a doctor engaged in unprofessional conduct when he acted as a witness without conducting adequate inquiries to ascertain whether a 91 year old man with dementia had capacity to execute a statutory declaration, they were very critical of him and stated the following:

It reflects ill on the practitioner and on the profession of medicine if a doctor is privy to, and a facilitator of, persons signing documents, to their potential disadvantage, when they are unable to do so with any real understanding of what they are doing. This is especially so if the person signing documentation is a medical practitioner’s current patient. In the opinion of all members of this Panel, it is the responsibility of medical practitioners in the current environment to take modest steps to assure themselves that they and their profession are not being manipulated or abused in the context of the witnessing of important documentation.(96)

Santow J advised that the solicitor should take a detailed written record of what took place. The doctor should record the results of the medical examination and the others present should take notes.(97)

Santow J went on to state in a sentence intentionally containing a double negative:

If after careful consideration of all the circumstances the solicitor is not satisfied that the testator does not have testamentary capacity he should proceed and prepare the will.(98)

However Santow J subsequently qualified that opinion with the following statement:

If those questions and the answers to them, leave the solicitor in real doubt as to what should be done, other steps may be desirable. This may include obtaining a more thorough medical appraisal or, if the testator declines, considering whether the will can be properly drawn, should assurance on testamentary capacity fail to satisfy the test just quoted.(99)

He also recommended that the “good general practice” that the solicitor who took the instructions to draw the will should be present when the will-maker executes the will should be followed in these circumstances, that the witnesses attesting the will should be chosen from those present when the instructions were taken and that detailed notes of the events that occurred and the discussions that took place at that time should be made.(100) In 1977 Templeman J (later Lord Templeman of the House of Lords) in the Chancery Division noted that the making of a will of an old and infirm will-maker “ought to be witnessed and approved by a medical practitioner who satisfies himself as to the capacity and understanding of the testator and makes a record of his examination and findings”.(101)

In the Manitoba Court of Queen’s Bench in 1985, Kroft J took a strong and clear position on the role of solicitors in relation to will-making by weak and ill people at the end of their lives.(102) He “garnered” “basic rules” from Banks v Goodfellow and subsequent Canadian cases noting the following in particular:

The duty of a solicitor taking instructions for a will is always a heavy one. When the client is weak and ill, and particularly when the solicitor knows that he is revoking an existing will, the responsibility will be particularly onerous.

A solicitor cannot discharge his duty by asking perfunctory questions, getting apparently rational answers, and then simply recording in legal form the words expressed by the client. He must first satisfy himself that true testamentary capacity exists, that the instructions are freely given, and that the effect of the will is understood.(103)

In Australia solicitors may be held professionally liable for failing to assess their client’s capacity adequately.(104) In 2008, a solicitor prepared a will and an enduring power of attorney for an elderly widow in a nursing home. The will changed the disposition of the estate from previously favouring the children of the will-maker to favouring a friend. The then Queensland Legal Practice Tribunal accepted the evidence that a nurse in the retirement home told the solicitor of the client’s impaired mental health and memory loss. The Tribunal publicly reprimanded the solicitor and found that he participated in unsatisfactory professional conduct by failing to ‘conduct appropriate inquiries’ to satisfy himself that the client understood the legal effect of the will and the enduring power of attorney he drafted for her.(105) The Tribunal stated that the solicitor’s conduct "in relation to the execution of the documents fell short of a standard of competence and diligence that a member of the public was entitled to expect of a reasonably competent Australian legal practitioner".(106)

In the Pates Case, Santow J also suggested that that it may be appropriate for the Law Society of New South Wales to give guidance to solicitors as to what was professional conduct in these circumstances.(107) In 2009, the Society published, “A Practical Guide to Solicitors: When a client’s capacity is in doubt”.(108) It noted that it was not the responsibility of a solicitor to be an expert in capacity assessment of their client. However, they could be involved in carrying out a “legal” assessment of their client’s capacity and suggested that this involves:

1. making an initial, preliminary assessment of capacity involving looking out for warning signs and using basic questioning and assessment of the client,
2. if doubts arose, seeking a clinical consultation or formal evaluation of the client’s capacity by a clinician with expertise in cognitive capacity assessment,
3. making a final, legal judgment about capacity for the particular decision or transaction.(109)

In the 2009 case Nicholson v Knaggs, Vickery J of the Supreme Court of Victoria recommended a “considered and appropriately structured interview with the testatrix” and emphasized:

in order to establish knowledge and approval of a will by a testator, more is required than merely establishing that the testator executed it in the presence of a witness after it had been read to or by him.(110)

Vickery J also referred to the 1955 High Court decision, Boreham v Prince Henry Hospital in which the Court noted the well-accepted proposition that a will made in “advanced age” is “always carefully scrutinised by the court” and then continued:

The proper approach of the Court to the question whether a testator has testamentary capacity is clear. Although proof that a will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator's competency, the Court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it or, if instructions for the will preceded its execution, when the instructions were given.(111)

Vickery J then pointed out that while the approach in such cases was to scrutinise the evidence more closely than is usual in the course of reaching a decision on the balance of probabilities, the High Court was not imposing a higher standard of proof. The standard remains that of affirmative satisfaction on the balance of probabilities. The High Court was indicating that what was required was that the evidence as a whole was considered but with a degree of caution to be applied when considering each of the factual issues that was under scrutiny. For example, was the will-maker’s soundness of mind an issue and what did the evidence show? The same approach was to be applied to the will-maker’s memory or to their understanding of what they were doing when they gave instructions for or executed the will, if those matters arose as issues, then the standard of proof would be applied to that evidence.(112)

In a 2010 case in the Supreme Court of Queensland, the solicitor who made a will for a 94 year old woman admitted that he was unaware that she suffered from both depression and dementia for some time prior to giving instructions. The inquiries made by the solicitor into his client’s will-making capacity and ability to communicate in English were criticised as being ‘shallow, to say the least’, and his records fell ‘far short of the standard required of solicitors dealing with the preparation of wills for aged, enfeebled or ill clients’. The solicitor relied on the doctor’s assessment of the will-maker’s capacity but Jones J noted that this did not relieve the solicitor from responsibility of making his own inquiries and keeping a suitable record of the investigation made. Nevertheless, after considering the evidence in relation to the will-maker’s capacity, Jones J found that she had sufficient will-making capacity for the challenged will to be valid.(113)

As Gleeson CJ pointed out when he was still Chief Justice of New South Wales, the power to dispose freely of one’s assets by will is an important right and that a decision that a person lacked, or was not shown to have a sound, disposing mind, memory and understanding was a grave matter.(114) However, as has been pointed out by a number of judges in Australia and New Zealand, this is a dilemma that faces any solicitor with an elderly client who resides in an aged care facility who wants to make a new will. They accept that it may not be practical or appropriate for the solicitor to undertake all the inquiries that are made for the purpose of proof of a will in solemn form. They also accept that a solicitor may be excused from acting on the client’s instructions, if it is patently clear that the client does not have will-making capacity. However, they take the view that if the solicitor is satisfied that the client is capable of giving instructions, even if the circumstances are such that there may be a doubt as to will-making capacity, the solicitor must act on the client’s instructions to make the will. They are concerned about the ethical issue of a solicitor being constrained by their client’s instructions. The solution they offer is to leave it up to the courts to decide the matter if the validity of the will is challenged. To assist in the conducting of such a challenge, they advise that solicitors keep appropriate records, including any medical opinion as well as the opinions of laypersons with a useful knowledge of the client.(115)

Nevertheless, one of the judges supporting this approach has noted that there were authorities that suggest that it would be prudent for a solicitor to obtain supporting medical opinion before making a new will for an elderly client where there was a doubt about the client’s will-making capacity.(116) Also in the Supreme Court of NSW in 2012 White J, while stating that the duties of a solicitor when asked to prepare a will for a person whose will-making capacity must have been in doubt were settled and he relied on Santow J’s statements in the Pates Case for that proposition, went on to quote the following parts of Santow J’s judgment as follows:

The legal practitioner should take such steps as are reasonably practicable to enable that practitioner to give proper consideration to any matters going to the validity of the proposed will and then should advise and act in conformity with that consideration. Such a conflict will especially arise where there is reason to fear lack of testamentary capacity on the part of the testator by reasons such as fragility, illness or advanced age...

...

There is an additional consideration, not dependent of the question of conflict of interest. That is, the duty of the solicitor taking instructions from an obviously enfeebled testator, where capacity is potentially in doubt, to take particular care to gain reasonable assurance as to the testamentary capacity of the testator ... What should be done in each case will depend on the apparent state of the testator at the time and other relevant surrounding circumstances. Any suggestion that someone, potentially interested, has instigated the will, whether or not a client of the will draftsperson, should particularly place the solicitor concerned on the alert. At the least, a solicitor should ask the kind of questions designed to probe the testator's understanding of the basic matters which connote testamentary capacity...(117)

White J went on to criticise a solicitor for the unsatisfactory way in which he took instructions from the will-maker. He also found that the proponents of the challenged will had failed to prove the will-maker’s will-making capacity.(118)

There appear to be two approaches to the role of a solicitor when instructed by a client to draft a will where it is unclear whether or not the intending will-maker has will-making capacity. The first approach is to make the will and keep records of any information relevant to the question of capacity. The second is more nuanced. It involves seeking an assessment of capacity, if that can be achieved and is not contrary to the client’s instructions, and for the solicitor to be on alert when the person who has instigated the will-making process has an interest in the new will being made and not the will-maker themselves. We note that this second approach is rapidly becoming the “Golden Rule” of good practice.

In the 2010 the English Chancery Division case already referred to in 4. 2 above, Briggs J noted that a solicitor accepted instructions for the preparation of a will from an 89 year old will-maker whose wife of 65 years' standing had been dead for only a week. The solicitor did so without taking any proper steps to satisfy himself of the will-maker’s will-making capacity, and “without even making an attendance note of his meeting with [the will-maker and one of his daughters who became a major beneficiary as a result of the new will], at which the instructions were taken”.(119) Briggs J described this as a failure to comply with the “Golden Rule” which he described as follows:

The substance of the Golden Rule is that when a solicitor is instructed to prepare a will for an aged testator, or for one who has been seriously ill, he should arrange for a medical practitioner first to satisfy himself as to the capacity and understanding of the testator, and to make a contemporaneous record of his examination and findings.(120)

Briggs J went on to point out that the “Golden Rule” was not a rule of law affecting the validity of a will, but a recommendation for good practice. He said:

Compliance with the Golden Rule does not, of course, operate as a touchstone of the validity of a will, nor does non-compliance demonstrate its invalidity. Its purpose, as has repeatedly been emphasised, is to assist in the avoidance of disputes, or at least in the minimisation of their scope. As the expert evidence in the present case confirms, persons with failing or impaired mental faculties may, for perfectly understandable reasons, seek to conceal what they regard as their embarrassing shortcomings from persons with whom they deal, so that a friend or professional person such as a solicitor may fail to detect defects in mental capacity which would be or become apparent to a trained and experienced medical examiner, to whom a proper description of the legal test for testamentary capacity had first been provided.(121)

A 2011 case also from the English Chancery Division confirms why the “Golden Rule” is not a rule of law but a recommendation for good practice. Norris J stated that it cannot be applied in all circumstances and that there will be circumstances when solicitors will be called upon to draft a will for a will-maker urgently so that will-maker can execute it – as in this case – before they die.(122) Although from a medical perspective (see below Sections 4.7.4 and 4.9.3.3), the circumstances of the death bed will are highly likely to render a will-maker both vulnerable to undue influence and lacking testamentary capacity and thus represent the very circumstances when the Golden Rule should be applied.(123)

The fact situations in the two cases are very different and this clearly was at least part of the explanation of the difference in approach between the two deciding judges. In the 2011 case the will-maker had had a number of wives and a number of children both within and without marriage to the mother. However, he had been living for 32 years as man and wife with the woman to whom he left all of his fortune, estimated for probate purposes to be well in excess of four million British Pounds, in a will made just before he married her two days before he died. That will was made in anticipation of the marriage. Under the common law, a will made in anticipation of marriage revokes previous wills. The will was hand-written by the solicitor retained to assist the will-maker make his will based on the instructions he had taken from the will-maker. The will-maker signed the will, in the presence of the witnesses, after it was read over to him and then attested. This process, which is described in detail in the judgment, took about 45 minutes.(124) The will was made during the evening of 23 September 2008. The marriage occurred immediately after the will had been made. The will-maker died during the morning of 26 September 2008. The haste in all this was brought about by the fact that on 22 September 2008, the will-maker was given a diagnosis of terminal liver cancer and advised that he had between three and ten days to live.

The will was challenged by the will-maker’s two daughters by his first marriage who were the beneficiaries of his estate under his most recent prior will. They challenged on the grounds of lack of testamentary capacity and undue influence, but admitted that their father had will-making capacity during the litigation. As to undue influence Norris J noted the following:

1. Execution of a will as a result of undue influence is a fact that must be proved by those who assert it.
2. They must establish that there was coercion, pressure that has overpowered the freedom of action of the testator without having convinced the will of the testator. If the evidence only establishes persuasion, then a case of undue influence will not be made out.
3. Where the line between "persuasion" and "coercion" is to be drawn will in each case depend in part upon the physical and mental strength of the testator at the time when the instructions for the will are given. Was the testator then free and able to express his own wishes? Or was the testator then in such a condition that he felt compelled to express the wishes of another
4. In many cases the fact of undue influence cannot be proved by the direct evidence of witnesses but is an inference to be drawn from other proven facts. It is sometimes said that an inference of undue influence should not be drawn unless the facts are inconsistent with any other hypothesis. The danger of that formulation is that it may cause one to lose sight of the relevant standard of proof: so I have paid particular attention to what was said by Morgan J in _Cowderoy v Cranfield_(125)

The requisite standard is proof on the balance of probabilities but as the allegation of undue influence is a serious one, the evidence required must be sufficiently cogent to persuade the Court that the explanation for what has occurred is that the testator's will has been overborne by coercion rather than there being some other explanation:

The fact of undue influence is in truth a complex of facts involving the establishment (by proof or inference) of the opportunity to exercise influence, the actual exercise of influence, the actual exercise of influence in relation to the will, the demonstration that the influence was "undue" (i.e. went beyond persuasion), and that the will before the Court was brought about by these means.(126)

Norris J, dealt with the submission that the will-maker’s solicitor failed to observe the “golden rule” as follows:

In this connection it was observed that [the solicitor] had failed to observe the "golden rule" of having the testator's medical attendant satisfy himself as the capacity and understanding of the testator and make a contemporaneous record of his examination and findings, because the medical attendant may detect defects in mental capacity which may not be apparent to a friend or professional person. But testamentary capacity is not in issue in this case. I consider the criticism of [the solicitor] for a failure to follow "the golden rule" to be misplaced. His job was to take the will of a dying man. A solicitor so placed cannot simply conjure up a medical attendant. He must obtain his client's consent to the attendance of and examination by a doctor. He must procure the attendance of a doctor (preferably the testator's own) who is willing to accept the instruction. He must make arrangement for any relevant payment (securing his client's agreement). I do not think [the solicitor] is to be criticised for deciding to make his own assessment (accepted as correct) and to get on with the job of drawing a will in contemplation of marriage so that [the will-maker] could marry. I certainly do not think that "the golden rule" has in the present case anything to do with the ease with which I may infer coercion. The simple fact is that [the will-maker] was a terminally ill but capable testator.(127)

This case helps demonstrate why the “golden rule” is not a rule of law. However, it remains “a rule of solicitor’s good practice”.(128) Frost et al, in noting the inconsistent approach of the court to compliance with the Golden Rule, comment that the rule: “must be taken seriously and be understood by all draftsmen……. Reasons for or against following it should be carefully recorded.” (129) They note further:

[T]there is still strong support for the application of the rule by draftsman; with often adverse comment where there has been non-compliance. This makes it all the more dangerous for a draftsman to ignore the Rule without good and documented reasons.(130)

Consistent with that position, while pointing out that it was no more than a recommendation for good practice and not necessary regarded as a "golden rule" in Australia, in a 2011 decision in the NSW Supreme Court Hallen AsJ noted that some authority suggested that it would be prudent, before making a new will for an elderly client where there was doubt about their testamentary capacity, for a solicitor to obtain a medical opinion about the client’s medical condition and its effect on their capacity. He then went on to refer to the statements of Kroft J and Vickery J set out above.(131)

It should be noted that in a 2016 case in the High Court of Australia a majority of the Court noted that it was a duty of a solicitor, arising from their retainer, to ensure that the client gives consideration to the claims that might be made upon their estate before giving final instructions as to their testamentary dispositions.(132)

However Gageler J went further. He said that the duty was to exercise that degree of care and skill to be expected of a member of the profession having expertise appropriate to the undertaking of the function specified in the retainer. He suggested that the performance of that duty might require the solicitor not only to undertake the precise function specified in the retainer but also to provide the client with advice on appurtenant legal risks. He left open the question of whether or not performance of that duty might require the solicitor to take some further action for the protection of the client's interests beyond the function specified in the retainer, because there were differences of view about that matter and it was a matter that did not have be determined in this case.(133) Nevertheless, he went on to point out that the solicitor’s duty extended to a person whom the will-maker actually intended to benefit from the will but was confined to requiring the solicitor to take reasonable care to benefit that person in the manner and to the extent identified in the will-maker's instructions. On the facts of this case, he considered what the solicitor had done in drawing up the will was sufficient.

In this case a solicitor took instructions to draft a will for a client. The solicitor’s notes recorded the client's instructions were to prepare a will leaving the client's whole estate to Calvert, the respondent in the appeal, if he survived the client. If he predeceased the client, the will-maker, the whole of the will-maker’s estate was to go to Calvert’s children in equal shares. The will-maker had a daughter, but that was not noted in the solicitor’s instructions. Nor was there any evidence about what the will-maker might have done had he been told of the possibility that a claim under the Testator Family Maintenance Act 1912 (Tas) might be made against his estate. The daughter made a claim and a court ordered provision was made for her out of her father’s estate. Calvert sued the solicitor. He was unsuccessful before the trial judge, Blow CJ, but won his appeal to the Full Court of the Supreme Court of Tasmania. A unanimous High Court allowed the appeal to it and dismissed the appeal against Blow J’s decision.

In a decision made in April 2017 when he was the President of the Queensland Civil and Administrative Tribunal, D G Thomas J dealt with a case of a solicitor charged with professional misconduct and unsatisfactory professional conduct in that he failed to maintain reasonable standards of competence and diligence in relation to the execution of both a will and an enduring power of attorney for his client, Ms L. (134) Ms L was a 50-year-old woman with an intellectual disability who lived in a co-dependant relationship with her 75 year old mother, who was not well. The facts of the case, as agreed to by the parties and set out in his judgment by Thomas J, show how not to go about acting for a client who may have decision-making disabilities whatever their cause.

The solicitor, Mr Ho, was given the instructions relating to the preparation and execution of the enduring power of Attorney and the will, by Ms L’s brother-in-law. Ms L’s sister was to be the attorney and her husband (the brother-in-law) the alternative attorney. Also, Ms L’s sister was to be the executor of Ms L’s will and her husband the alternative executor. Mr Ho came to the house where Ms L and her mother lived, armed with the two documents for her to sign and have witnessed etc in accordance with the requirements of the relevant legislation and the common law.

Prior to this Mr Ho had been that Ms L had an intellectual disability. However, the only evidence that Ms L knew anything about the documents was when Mr Ho asked at that meeting whether she knew what the documents were for. She replied, “it’s so that they can help me with my money”. Mr Ho did not conduct his interview with MS L in accordance with the Office of the Public Guardian of Queensland’s “Guidelines for Witnessing Enduring Documents”. Mr Ho did not make use of open-ended questions; nor did he approach the enquiry as to capacity in the way required by the Guidelines.(135) (136) Reverting to the case, Mr Ho did not make any record of steps taken in assessing Ms L’s capacity to understand the nature and effect of the enduring power of attorney or the will. Nor did he seek any medical opinion verifying his client’s (Ms L’s) capacity to sign either the enduring power of attorney or the will. Mr Ho also failed to interview alone his client in this matter, namely Ms L.

D G Douglas J was clear that, in relation all these matters, Mr Ho’s conduct fell short of the standard of competence and diligence that a member of the public in entitled to expect of a reasonably competent Australian legal practitioner and concluded that Mr Ho’s conduct of amounted to unsatisfactory professional conduct. (137) The judgment in this case sets out in very clear terms how a lawyer should proceed in a situation in which they were preparing an enduring power of attorney , or similar document, or a will for a client whose decision-making capacity to make such a document is open to doubt. Additionally, this case also highlights a recurrent issue in regards to lawyers establishing from the outset who is the client.

4.5 The tendency to uphold the will-makers right to make a will

As already noted, in 4.4, Gleeson CJ pointed out some time ago that the power to dispose freely of one’s assets by will is an important right.(138) In the English Court of Appeal in 2010, Lord Neuberger MR stated the legal policy which he said reinforced the idea that a court should be very cautious about accepting a contention that a will that had been prepared by a solicitor, read over to the will-maker and then executed should be open to challenge.(139). The case involved a challenge to a will made by a will-maker who had a severe anxiety disorder and agoraphobia. Lord Neuberger MR expressed the legal policy in the following terms:

Wills frequently give rise to feelings of disappointment or worse on the part of relatives and other would-be beneficiaries. Human nature being what it is, such people will often be able to find evidence, or to persuade themselves that evidence exists, which shows that the will did not, could not, or was unlikely to, represent the intention of the testatrix, or that the testatrix was in some way mentally affected so as to cast doubt on the will. If judges were too ready to accept such contentions, it would risk undermining what may be regarded as a fundamental principle of English law, namely that people should in general be free to leave their property as they choose, and it would run the danger of encouraging people to contest wills, which could result in many estates being diminished by substantial legal costs.(140)

The policy of upholding a person’s right to make a will wherever it was legitimate to do so, is reflected in the established position that a person who is the subject of a financial management order made by NCAT, may still be able to make a will even though the financial management order precludes them from entering into contracts or dispose of their property during the time they are subject to a financial management order.(141) Similarly, a person who is the subject of a guardianship order made by NCAT may still be able to make a will.(142) This is because the findings of NCAT in relation to guardianship (or financial management) have no effect on the person’s capacity to make a will. As noted in other chapters, capacity to make one sort of decision does not imply the capacity to make other sorts of decisions. Nevertheless, the findings of NCAT may be admitted in evidence before the Supreme Court to be taken into account by it “to the extent of whatever rational persuasive power they may have”.(143)

A similar approach was taken in Victoria in relation to findings and decisions of the Guardianship and Administration Board there (now the Guardianship List of the Victorian Civil and Administrative Tribunal).(144) Following the New South Wales approach, a Full Court of the Supreme Court of Western Australia has held that a person who is the subject of an administration order may still be able to make a will, but that for such a will to be given effect to it would be necessary to prove that the person had will-making capacity at the time they made their will.(145) We suggest that this approach is consistent with the concept of task-specific capacity namely that a person’s capacity to make a decision in one area or task (for example will-making) is distinct and separate, and therefore cannot be extrapolated from their capacity to perform another task (for example making decisions about lifestyle or finances).

Subject to any legislative provisions limiting or precluding those who are the subject of administration orders from making or varying wills, or imposing restrictions on the circumstances in which a person who is the subject of a guardianship or administration order may make or vary a will, there is no reason why the position taken by the Supreme Courts of New South Wales, Victoria and Western Australia would not be followed in the other Australian jurisdictions.(146) In South Australia, SACAT is authorised to direct that a person who is the subject of a guardianship or administration order may make a will-making disposition only after compliance with such precautions as SACAT thinks fit to direct.(147) In Western Australia however, a provision which may have been intended to give a similar power to the State Administrative Tribunal has been held not to apply to wills or other forms of testamentary instrument, for example codicils.(148)

As Powell J shows in Perpetual Trustee Co v Fairlie-Cunninghame, the courts and commentators in England and Australia have long since held the opinion that those with mental illnesses may be able to make wills during lucid periods. In any event their wills have no effect during their lifetime and the validity of such wills may be tested before probate of them is allowed.(149) The issue of lucid intervals is complex and is one area where the law lags behind medicine, as discussed below.(150)

In a subsequent case, Powell JA referred to many forms of mental disorder that may be relevant to the question of whether or not a will-maker had will-making capacity at the time they made their will. He referred to multi-infarct dementia, Alzheimer’s type dementia which is progressive but irreversible at present, delirium from alcoholism or other causes which may be reversed, at least to a degree. He also referred to forms of psychosis, including schizophrenia and bi-polar disorder, which may be controllable either substantially or to some degree by anti-psychotic medications.(151) Many of the conditions he referred to are described below together with their likely impact on a person’s will-making capacity.(152)

In Re Hodges; Shorter v Hodges, Powell J noted the opinion of a leading psychiatrist giving expert evidence that the cognitive changes brought about by depression did not affect the person’s capacity to reason but affected the person’s motivation for action and held that a depressed person who shot himself soon after making a will had will-making capacity when he made it.(153)

When a person has been prone to bouts of alcoholism the question has arisen as to whether or not they could make a valid will. In Landers v Landers a man had temporary beliefs described as absurd when affected by alcohol.(154) The question that the High Court dealt with was put by Rich J as “whether the delusion alleged to exist in the mind of the testator when drunk was also present in his mind when sober”.(155) As the evidence satisfied the court that the alleged delusion did not affect the will-maker when he made his will, the High Court held that he had will-making capacity at that time. As already noted, Timbury v Coffee was a case of a will-maker who drank himself into a state of physical exhaustion and mental disturbance.(156) In the intervals between the bouts he behaved in a reasonable manner in most respects. Nevertheless, he developed an intermittent distrust of and antagonism towards his wife. Even when apparently free from alcoholism, he sometimes recounted incidents relating to her that were improbable and, in some cases, inconsistent with the proven facts. He made four wills during intervals between his bouts of alcoholism. The facts of the case were decided by a jury. The jury decided that he was not of sound mind, memory and understanding when he made his last will, but was in that state when he made his second last will. The High Court did not interfere with the jury’s findings.

Advanced age does not of itself prove that the will-maker was incapable, even when associated with serious illness. However, the will of such a person will be carefully scrutinized by the court.(157) In 1924, in Bailey v Bailey the five members of the High Court agreed on the principle, but disagreed as to whether the will-maker had capacity.(158) The minority stated the principle as:

[G]reat age, while it necessarily excites the vigilance of the Court, does not of itself establish want of capacity.(159)

Mr Bailey was 88 and suffering from pneumonia when in 1923 he made what was his seventh will. He signed it with a mark as he was too ill to sign his name. He died three days later. The majority of the High Court upheld this will rather than his sixth will made in 1914.(160) For a more recent example, see Re Estate of Bellew.(161) In that case an unsigned will was accepted as the last will of an elderly woman, aged either 88 or 90. She was suffering from a degree of dementia as well as congestive heart failure and renal failure. She was also the subject of a guardianship order.

One of the disadvantages of advancing age is the risk the onset of dementia. The fact that a person has got dementia does not preclude them from making a will. A will made by a woman when she had mild dementia was upheld in the Supreme Court of Victoria in 1998.(162) The key issue is the severity of the dementia and whether it impaired insight, judgment and decision-making skills.(163)

In a 2009 case, even though Vickery J of the Supreme Court of Victoria found, the evidence as a whole was sufficient to throw doubt upon the competency of the will-maker, he was positively satisfied that she was of sound mind, memory and understanding when she executed her1999 will and her March 2000 codicil. He noted that:

[A]t the time when she gave her instructions for those instruments, she knew what she was doing, and she understood the effect of the principal clauses in the will; she had a general knowledge of the nature of her property and that it was an estate of significant value; and she acknowledged the friends and relatives who she ought to have considered at the time.(164)

Although Vickery J found that by mid-1999 the will-maker was suffering from cognitive impairment characteristic of the pre-dementia stage of Alzheimer’s disease and remained in that condition in March 2000, that degree of mental impairment did not necessarily preclude her from having will-making capacity as defined in law, and that it did not have that effect in either 1999 or March 2000.(165) However, he was affirmatively satisfied that by December 2000 and in 2001 she was not of sound mind, memory and understanding. Consequently, the December 2000 codicil and the 2001 will were not valid and were set aside.(166)

Vickery J also pointed out that it is not necessary to establish that the will-maker was capable of understanding all the clauses of the will. An appreciation of the legal effect of every clause in a will was not necessary; but it had to be shown that the will-maker understood that they were executing a will. It also needed to be shown that they understood the practical effect of the central clauses of the will, including the dispositions of property made in it and the implications for the estate of the appointment of those who were to administer it.(167) That approach has been adopted in New South Wales.(168)

Further, Vickery J provided another basis for supporting the right of will-makers to make wills even if they cognitive disabilities. He referred to Article 12(2) of the Convention on the Rights of Persons with Disabilities 2006 which Australia has ratified and which is in force. Vickery J noted that in the context of will-making, the Convention provided for “an obligation on Australia to recognise that persons with disabilities enjoy the exercise of the right to freedom of testamentary disposition on an equal basis with all other persons”.(169)

4.6 Proving a will is valid – the onus of proof and who has it

Most wills are not contested and the executor will obtain the permission of the Supreme Court to distribute the estate, that is the real and personal property of the will-maker who has died. This is done by a process called seeking probate of the will in common form. If the will is contested, the process is to seek a grant of probate from the Court in “solemn form”. The effect of such a grant of probate is that it is binding on all the parties to the court action and everyone else, subject to certain exceptions.(170) Usually the executor, but sometimes another person, applies to the Supreme Court for a grant of probate in solemn form. Whoever does so is said to “propound” the will. They bear the onus of proving that the will is the validly made and valid last will and testament of the will-maker. This onus of proof, which is to the civil standard of balance of probabilities, remains with them until the end of the process.(171) Even though during the process the onus may shift to a party alleging that the will should not be admitted to probate to show why it should not be so admitted, the ultimate responsibility of satisfying the Court that the will should be admitted to probate lies with the applicant.(172) However, where a will is rational on its face and duly executed, there is a presumption that the will-maker had will-making capacity. Nevertheless, that presumption is rebuttable and the legal onus remains with those “propounding” the will.(173)

That part of the test relating to the will-making capacity of the will-maker was restated in 1995 by Gleeson CJ, when he was still Chief Justice of New South Wales, as follows:

Where the evidence in a suit for probate raises a doubt as to testamentary capacity, there rests upon the plaintiff the burden of satisfying the conscience of the court that the [will-maker] had such capacity at the relevant time. If, following a vigilant examination of the whole of the evidence, the doubt is felt to be substantial enough to preclude a belief that the [will-maker] was of sound mind, memory and understanding at the time of execution of the will, probate will not be granted.(174)

In a 2010 case, Briggs J of the English Chancery Division stated the burden of proof “rules” for will-making capacity even more plainly but using the legal terminology of “testamentary capacity” and “propounder”. He said:

The burden of proof in relation to testamentary capacity is subject to the following rules:

1. While the burden starts with the propounder of a will to establish capacity, where the will is duly executed and appears rational on its face, then the court will presume capacity.
2. In such a case the evidential burden then shifts to the objector to raise a real doubt about capacity.
3. If a real doubt is raised, the evidential burden shifts back to the propounder to establish capacity nonetheless.(175)

4.7 Proving a will – will-making capacity, knowledge and approval, suspicious circumstances and testamentary (probate) undue influence

Will-making capacity is dealt with in sections 4.4 to 4.6 above. However, where a will is challenged on the grounds that the maker lacked will-making capacity at the time they made the relevant will, the questions of whether the will-maker knew and approved of the contents of the will, as well as suspicious circumstances often also arise.

A common example of suspicious circumstances is when a person with cognitive deficits makes their first will or a new will which, in either of those circumstances, benefits those who played a part in having the will made. Those circumstances will be treated as suspicious circumstances with implications for those wishing to prove that a will made in those circumstances was valid. Similarly, if a person with cognitive deficits suddenly changes a long-standing will-making pattern, the circumstances in which that will was made will be treated as suspicious.(176)

Recently, the Victorian Law Reform Commission noted that courts have held the following circumstances to be suspicious, thus requiring further investigation of ‘the righteousness of the transaction’, meaning the validity of the will, if:

1. a beneficiary is involved in the will-making process, for example by witnessing the will, writing or preparing the will or taking the will-maker to a legal practitioner;
2. the will-maker is ‘blind, illiterate or mentally or physically enfeebled’;
3. the will was not read to or by the will-maker before it was executed; or
4. the will changes a pattern of previous wills by cutting out ‘natural’ beneficiaries and replacing them with recent acquaintances.(177)

Many of these circumstances were articulated by Hallen As J in 2011 in the NSW Supreme Court in Petrovski v Nasev.(178)

Experience has shown that suspicious circumstances and undue influence being exerted on the will-maker are often linked. In a 1968 case, Scarman J claimed that Lord Penzance, a famous English judge of the second half of the 19^th century, had once said that the issues of will-making capacity, knowledge and approval, undue influence and fraud very often merged into one another.(179) Where a person was elderly, ill and “feeble” and had cognitive deficits, or was a person with acquired brain damage, psychiatric condition or intellectual disabilities reducing their capacity to make decisions or appreciate what they were doing, they have sometimes been encouraged by unscrupulous family members or “new-found friends” to make wills in their favour.(180) Getting the person to make a new will favouring people who would not normally have a claim to the person’s bounty or to give disproportionate benefits to one such claimant over other claimants are two common ways among the myriad of ways in which vulnerable, cognitively impaired individuals can be taken advantage of. Such wills can be challenged, but only after the death of the will-maker when probate of their will is being sought so that their estate can be distributed to the beneficiaries. Gifts made during life time are treated differently. They are dealt with in Chapter 3.

One approach is to allege suspicious circumstances. Another is to claim undue influence in the will-making process. Despite the fact that they may arise from the same fact situations, they are treated differently by the courts. These matters will be returned to in 4.7.2 and 4.7.3 below.

4.7.1 Knowledge and approval of contents of the will

The person seeking probate of a challenged will (the propounder) has to satisfy the court that the will-maker had will-making capacity, but they must also show that the will-maker knew and approved of the contents of the will, though not the legal effect of every clause of the will.(181)

Complying with the formal requirements for validity such as the witnessing requirements and having proof of testamentary capacity is usually enough to establish knowledge and approval. However, where suspicious circumstances exist, the person seeking to uphold the will must affirmatively prove that there was knowledge and approval of its contents, with the onus of proof lying with that person, not the person challenging the will.(182)

As Hallen As J pointed out in 2011 in the NSW Supreme Court, the requirement of knowledge and approval is conceptually distinct, and separate, from will-making capacity, and must not be conflated with it.(183) This is because the question of testamentary capacity is not whether the will-makers did bring to mind their property and those who might have claims upon them, and did evaluate the respective claims on their testamentary bounty, but whether they were able to do so.(184) Consequently, if the maker of a challenged will is found to have will-making capacity (or at least for the court not to be satisfied that they had lost it), the question can then arise did they have knowledge of and give their approval to the contents of the will.

Subsequently, in a 2012 case, Meagher JA (with whom Basten and Campbell JJA agreed) noted:(185)

The starting point is that the onus of proof lies upon the proponent of the will to satisfy the court that it is the last will of a “free and capable” testator.(186) To establish that a document is the last will, it must be proved that the testator knew and approved its contents at the time it was executed so that it can be said that the testator comprehended the effect of what he or she was doing.(187)

In a 2013 case in the NSW Supreme Court, White J agreed with Hallen AsJ ’s view that the concepts of testamentary (will-making) capacity and knowledge and approval of a will are distinct.(188) Nevertheless, he held that one of the contested wills made by the will-maker in 1999 should not be admitted to probate and that probate of the other 1999 will should be revoked. White J noted that “unusually” in that case the conclusion he came to could be put on each of three grounds namely, lack of testamentary capacity, undue influence amounting to coercion and lack of knowledge and approval of the contents of the wills. This was because when the will-maker signed both of the 1999 wills, she lacked will-making capacity because she was unable to evaluate the claims of an established beneficiary of her estate. White J stated that the will-maker was unable to make this assessment “because of the pressure to which she was subjected and which she was not capable of withstanding”. Further White J noted, using the language of a 19^th century case, that the will-maker’s signature to the 1999 wills was not "the offspring of [her] own volition [but] the record of someone else's". White J went on to state that there were suspicious circumstances surrounding the creation of both wills and notwithstanding that the first will was read over to the will-maker, he was not satisfied that she knew and approved of the contents of the wills.(189)

In a 2016 case a 92 year old man with paranoid schizophrenia who signed a “deathbed will” in favour of his neighbour over his brother, niece and nephews, Lindsay J of the NSW Supreme Court was not satisfied that it was “the last will of a free and capable testator”.(190) He concluded that the man did not have will-making capacity when he made the will, nor did he have knowledge of or give approval to the contents of the will. Lindsay J stated:

I am not satisfied that the deceased had the testamentary capacity required to make the 2014 will, or (if he did) that he knew and approved of its terms. I am not satisfied that the deceased had the capacity to remember, to reflect and to reason; or that he in fact did so in a rational way.(191)

As Hallen AsJ has pointed out, where the question of knowledge and approval is in issue, a two-stage approach to the evidence may be adopted. Stage one is to consider whether the circumstances are such as to "excite suspicion" of the court. If this is the case then the person seeking probate of the will has the “burden” of proving that the will-maker knew and approved the contents of that will. If the circumstances do not "excite suspicion", then the court will presume knowledge and approval on the part of the will-maker where the will has been duly executed by a will-maker who has will-making capacity.(192)

Hallen AsJ then noted that when considering whether circumstances did exist that “excite suspicion” that the will-maker did not have (sufficient) knowledge of or had not given approval to the contents of the will, the court will look at a number of factors including:

1. the circumstances surrounding the preparation of the will,
2. whether a beneficiary was instrumental in the preparation of the will,
3. the extent of the physical and mental impairment, if any, of the will-maker,
4. whether the challenged will constituted a significant change from a prior will,
5. whether the challenged will, generally, seemed to make testamentary sense.

However, he noted that suspicion engendered by extraneous circumstances arising after the execution of the challenged will are not a reason for rebutting the presumption arising from the due execution of a will regular on its face.(193)

To get the flavour of what the judges are seeking to clarify in relation to the requirement of knowledge and approval, it is worth summarising a passage from a judgment of Chadwick LJ of the English Court of Appeal quoted by Hallen AsJ. Chadwick LJ noted that where there was nothing to excite suspicion, a court may infer, without more, that will-makers who sign their will do know its contents. However, where there is evidence of a failing mind coupled with the fact that the beneficiary has been concerned in the instructions for the will (which excites suspicion that the will-maker may not know the content of the document they signed), the court dealing with the matter will require more than proof that a will-maker knew the contents of the document which they signed. For the court to be satisfied that a will-maker did know and approve the contents of their will - that they did understand what they were doing and its effect - it may require evidence that the effect of the will was explained, that the will-maker did know the extent of their property and did comprehend and appreciate the claims on their bounty to which they ought to give effect.(194) For a comprehensive discussion of knowledge and approval, and suspicious circumstances see also Veall v Veall [2015] VSCA 60, Veall v Veall [2015] VSCA 60; (2015) 46 VR 123; Agostino v Pietrobon & Anor [2020] SASC 117, [22] - [32] and Estate Rofe [2021] NSWSC 257, [148] – [157] and [567-583].

These standards apply to codicils. Importantly, codicils can be impugned and grant of probate revoked subject to the same process outlined here, namely the presumed knowledge and approval of an instrument that has been duly executed can be displaced if there are circumstances that create suspicion or doubt as to whether the instrument expresses the mind of the will-maker.(195)

It is often the suspicious circumstances that surround the making of a new will with new or different beneficiaries by a person with cognitive deficits, that lead to the will of such a person being challenged after their death on the grounds of lack of will-making capacity and/or lack of knowledge or approval of the contents of the challenged will and undue influence.

Please note that there is further discussion of issues relating to a will-maker’s knowledge of and approval of the contents of their will in the next section (4.7.2) suspicious circumstances.(196)

Sometimes when probate is sought for an informal will or a formal will with informal codicil, the informal will or codicil is challenged on the bases that the will-maker lacked testamentary capacity at the time they made the will or codicil or both, and also that the will-maker did not know and approve of the contents of the document(s). In a 2019 case McMillan J of the Supreme Court of Victoria with a case in which the will was not challenged, but the informal codicil was, and on the two, separate grounds referred to above.(197) In that case McMillan J noted that [a proposed testamentary] document that has not been duly executed, the usual presumptions as to testamentary [will-making] capacity and knowledge and approval do not apply. If the deceased [will-maker] lacked testamentary capacity or did not know and approve of the contents of the document, then the Court could not be satisfied that the deceased intended the document to be her or his codicil.(198) She then set out what had to be proved before a document would be recognised as a codicil for the purposes of probate.(199)

4.7.2 Suspicious circumstances

There are no restrictions on the factual situations which may constitute suspicious circumstances. Wherever a well-grounded suspicion is raised, those who seek to prove that the will is valid and the last will of the will-maker and should be recognised as such by the Supreme Court (the court with jurisdiction to grant probate), must remove that suspicion so that the will-maker’s estate can be distributed according to the terms of that will.(200) The whole will is of no effect if they fail to do so.(201) However, recent cases show that those seeking probate of a contested will need to prove the validity of the will on the balance of probabilities. As will be seen in this section, that process is assisted by presumptions that arise in the process of proving the validity of the contested will. But if there is evidence of suspicious circumstances and it is sufficient to displace any presumption favouring validity of the will, those seeking to prove the validity of the will and thus be granted the right to distribute the will-maker’s estate according to the terms of the will (that is be granted probate of the will), must prove, on the balance of probabilities, that all challenged elements of the will are valid.

Judges have tried to set out the somewhat labyrinthine processes that must be gone through to obtain probate of a challenged will. We review what appears to be the current law on the matter below.

Cases going back as far as 1857 are cited in support of the proposition that the law is settled.(202) In 1998, Doyle CJ of the Supreme Court of South Australia was satisfied that the principles to be applied in suspicious circumstances cases were “reasonably” clear and, and for his purposes stated authoritatively by the High Court through the agency of Isaacs J in 1918.(203)

Nevertheless, in 2012, in the NSW Court of Appeal, Meagher JA (with whom Basten and Campbell JJA agreed) sought to explain the inter-relation of suspicious circumstances, undue influence and testamentary capacity which he stated had perplexed both courts and litigants since 1838.(204) In the same case Campbell J A pointed out that, in the context of litigation about grants of probate in relation to particular wills, problems arose because the people best able to inform the Court about facts relevant to the drafting and execution of the will were not available to give evidence. Clearly the will-maker himself or herself would not available. However often enough the solicitor who interviewed and took instructions from the will-maker and took instructions from them as to the content of the will and/or drafted the will and/or took the will-maker through the will before they signed it, was not contactable or otherwise available. This has led to the development of processes in courts with probate jurisdiction, for determining who has the onus of proving (the obligation to produce, or point to, the evidence to prove) some particular matter relevant to that litigation, and in what circumstances there is a shifting of the onus to produce the evidence concerning that matter. In this regard, Campbell JA noted the onus of adducing evidence concerning one matter relevant to the litigation might be shifted by evidence that is not enough to shift the onus of adducing evidence concerning another matter relevant to the litigation.(205)

Meagher JA began his explanation by pointing out that the onus of proof lies upon the person seeking probate of the will to satisfy the court that the will they are seeking probate of is the last will of a "free and capable" of the will-maker.(206) He then stated that, in order to establish that a document was the last will, it must be proved that the will-maker knew and approved its contents at the time it was executed so that it could be said that they comprehended the effect of what they were doing.(207)

However he then pointed out that the person seeking probate of the will is aided in this process by presumptions. The first of these was that if a will is rational on its face and was proved to have been duly executed; there is a presumption that the will-maker was mentally competent.(208) While Meagher JA uses the term “mentally competent” in this context, we assume that he means that the will-maker had will-making capacity. Consequently, unless the will-maker’s capacity to make a will is challenged, the presumption will stand. Meagher JA continued that, upon proof of the will-maker’s will-making capacity, including proof by reliance on the presumption, and proof of the proper execution of the will, another presumption arose, namely the presumption that the will-maker had knowledge of and approved of the contents of the will at the time of its execution.

While these presumptions arising from proper will-making practices and procedures being followed can lead to probate of the will being granted, each of these presumptions may be challenged. If they are challenged, it must be by sufficient evidence for the challenged presumption to be displaced. If there is insufficient evidence provided to achieve this then the presumption will stand. However, if there is sufficient evidence for the presumption to be displaced, then the onus is on the person seeking probate of the will to prove that the part of the will-making process challenged was properly carried out.

Meagher JA pointed out that the suspicious circumstances rule did not operate at large. It operated to displace presumptions of fact that favoured those seeking probate of the will in the sense of relieving them from having to prove each requirement for a valid will. Consequently, it was necessary to identify the presumption or presumptions to which particular (suspicious) circumstances were said to be relevant. For example, if the presumption as to knowledge and approval were to be challenged, the circumstances raised to do so must be capable of throwing light on whether the will-maker knew and approved of the contents of the will. If those circumstances did raise doubts as to the will-maker’s knowledge and approval of the contents of the challenged will sufficient to displace the presumption, those seeking probate of it must dispel that doubt by proving affirmatively (that is, on the balance of probabilities) that the will-maker appreciated the effect of what he or she was doing. However, Meagher JA pointed out that they did not have to go further and disprove any suspicion of undue influence or fraud. This was because approval of the contents of the will by the will-maker, in this context, included proof of knowing what he or she was doing, but did not include that the will-maker executed the will in the absence of coercion and fraud.(209)

As part of his explaining the inter-relation of suspicious circumstances, undue influence and testamentary capacity, Meagher JA went on immediately to point out that once those seeking probate of the will had proved, on the balance of probabilities, that the will-maker knew and approved its contents at the time it was executed, the onus of proving undue influence or fraud was then on those alleging it.(210)

If a will is rational on its face and was proved to have been duly executed, Meagher JA noted that, the presumption that the will-maker had will-making capacity may be displaced by circumstances which raise a doubt as to the will-maker’s capacity at the time they made the will. As a result, the person seeking probate of the will had to prove, on the balance of probabilities that the will-maker was of "sound disposing mind" at the time they made the will.(211) He also pointed out that, if that doubt was not resolved on a consideration of the evidence as a whole, it may be sufficient to preclude the court being affirmatively satisfied (meaning on the balance of probabilities) as to the will-maker’s will-making capacity.(212)

In pointing out this important matter, Meagher JA was summarising what the High Court said in a joint judgment of Dixon CJ, Webb and Kitto JJ, on appeal from the Supreme Court of South Australia. We think it is worth setting out what the High Court said about the matter in more detail. The Court said that the effect of a doubt (about the will-making capacity of the will-maker when they made the will) initially is to require a vigilant examination of the whole of the evidence which the parties have placed before the relevant probate court. But then, that examination having been made, a residual doubt is not enough to defeat the person seeking probate’s claim for such an order unless it is felt by that court to be substantial enough to preclude a belief that the document put forward by the applicant for probate is the (last) will of a will-maker who possessed sound mind, memory and understanding at the time of its execution. The Court said that, after anxious consideration of the whole case it was of opinion that there was no sufficient reason for denying that a will-maker, who appeared to so many competent observers to be completely sane, and made a completely rational will, lacked a sound disposing mind, and allowed the appeal.(213)

Returning to the presumption that the will-maker had knowledge of and approved of the contents of the will at the time of its execution, Meagher JA pointed out that that presumption may be displaced by any circumstance that created a well-grounded suspicion or doubt as to whether the will expressed the mind of the will-maker.(214) However, he went on to confirm that there were limits on the kinds of circumstances that could displace the presumption. As already noted, he pointed out, albeit later in his judgment, that such circumstance must be capable of throwing light on whether the will-maker knew and approved of the contents of the will.(215) For him a circumstance capable of raising a suspicion concerning knowledge and approval must be related to the preparation or execution of the will, or its intrinsic terms, and not to events happening after the testator's death.(216) Once the presumption had been displaced, the person seeking probate of the will must prove (on the balance of probabilities) that the will-maker knew and approved of the contents of the will document.(217)

As to evidence that helped prove that the will-maker had actual knowledge of the contents of the will, Meagher JA noted that evidence that the will-maker gave instructions for the will or that it was read over by or to them is said to be "the most satisfactory evidence" of actual knowledge of the contents of the will.(218) As an aside, we note that from a medical scientific perspective in the case of someone with cognitive impairment or dementia, a will being read over to a person does not in any way suggest “knowledge” i.e. that they know or understand its contents. Rather, “knowledge and approval” can only be proved from a medical perspective by a person repeating their understanding of the will in their own words after it was read out to them.

What is sufficient to dispel the relevant doubt or suspicion will vary with the circumstances of the case; for example in Wintle v Nye.(219) In that case, the relevant circumstances were described (at 291) as being such as to impose "as heavy a burden as can be imagined". (However, the standard of proof in civil litigation is always on the balance of probabilities as expounded in Briginshaw v Briginshaw.)(220) Those circumstances may include the mental acuity and sophistication of the will-maker, the complexity of the will and the estate being disposed of, the exclusion or non-exclusion of persons naturally having a claim upon the will-maker, and whether there had been an opportunity in the preparation and execution of the will for reflection and independent advice. Particular vigilance is required where a person who played a part in the preparation of the will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction.(221) That requires that it be established, on the balance of probabilities, that the will-maker knew the contents of the will and appreciated the effect of what he or she was doing so that it can be said that the will contained the real intention and reflected the true will of the will-maker.(222)

Meagher JA noted that some of the cases dealing with contested wills contained statements prescribing "vigilance" and "careful scrutiny" and referred to the court having to be "affirmatively satisfied" as to the will-making capacity and knowledge and approval of the will-maker. However, he pointed out that, despite the apparent strength of the language, the level of proof required was no more than satisfaction on the balance of probabilities, the conventional civil standard of proof.(223) But he went on to point out that what such statements did was emphasise that the cogency of the evidence necessary to discharge the burden of proof on the balance of probabilities would depend on the circumstances of each case and, in particular, the source and nature of any doubt or suspicion in relation to either of these matters i.e. the will-making capacity of the will-maker and the will-maker’s knowledge of and approval of the contents of, the challenged will.(224) They also recognise that deciding whether a document is indeed a person's last will is a serious matter, so any decision about whether the civil standard of proof is satisfied should be approached in accordance with Briginshaw v Briginshaw.(225)

Meagher JA pointed out that circumstances which may suggest undue influence or fraud will often also give rise to a suspicion or doubt as to the will-maker's knowledge and approval of the contents of the will. Tyrrell v Painton was such a case.(226) In that case all members of the Court were of the view that those seeking probate of the will must prove affirmatively that the will-maker had knowledge of and gave approval to the contents of the will, before the onus of proving the undue influence or fraud they allege comes to those who oppose probate of the will.(227) In Meagher JA’s opinion it was for that reason that it was appropriate to consider any issue as to suspicious circumstances and proof of knowledge and approval or testamentary capacity before addressing any ground of objection on which the opponent to the grant of probate bore the onus of proof.(228) He then pointed out that the suspicion or doubt had to be cleared away on the balance of probabilities, but that there was no requirement that any remaining suggestion of undue influence be disproved.(229) However, Meagher J went on to note that, even though they had not made any allegation of undue influence or fraud, that did not prevent those opposing the grant of probate from putting knowledge and approval in issue and vigorously challenging the veracity of those seeking probate of the will.(230)

If the contested will passes through the challenges to presumptions, either by insufficient evidence to displace any of the presumptions dealt with above or, conversely, by evidence proving the validity of the will against all of the challenges to its constituent parts, on the balance of probabilities, then there may arise a necessity to consider the relationship between the requirement that the will be that of a "free" as well as "capable" will-maker and the principles relating to the proof of undue influence. Meagher JA appears to consider that this is the time in the process when it is necessary to consider the relationship between the requirement that the will be that of a "free" as well as "capable" will-maker and the principles relating to the proof of undue influence.(231) We suggest that it is where evidence that may have been relevant to the question of whether or not one of the presumptions of fact should be displaced by the court and requites to be proved as an actual fact on the balance of probabilities, can be redeployed to support an allegation of undue influence, coercion or fraud. It is also the place where “suspicious” circumstances not relevant in relation to the presumptions can be used for the same purpose, that is to support an allegation of undue influence, coercion or fraud.

In this context undue influence means that the will-maker has been coerced into doing what they did not desire to do. What must be established, by evidence and on the balance of probabilities, is that execution of the will was obtained by the exercise of "the power unduly to overbear the will of the testator".(232) Where the will has been executed by a person of competent understanding and, judged by the circumstances of execution, "apparently a free agent", the burden of proving that the will was executed under undue influence is on the party who alleges it.(233)

Returning now to the “doctrine of suspicious circumstances “. An uncomplicated example of these processes in operation is a 2012 case in the Supreme Court of New South Wales in which the “doctrine of suspicious circumstances" arose. In that case an 88 year old unmarried man who had had no children died leaving an estate of just under $6 million. His closest relatives were his younger half-brother, and a half-sister. He was on good terms, and had close contact, with both his half-sister and half-brother, but was closer to his half-sister. He made his only will approximately two years before he died. His half-sister arranged for a solicitor him to take his instructions and draft his will. She was present when he gave his instructions to the solicitor who drafted his will and had him execute it. His half-sister was not present when the will was read to him paragraph by paragraph and he signed it. The man left all of his estate to his half-sister and none to his half-brother.

His half-brother challenged the will on the grounds that the man did not have will-making capacity when he made the will, that he did not know of and approve the contents of the will and that there were suspicious circumstances surrounding the execution of the will. While there was some evidence before the Court in relation to the will-making capacity issue, the judge found, after considering the evidence, that the man had will-making capacity when he made his will.

The trial judge held that the “doctrine of suspicious circumstances" arose on the facts of the case because the man’s half-sister was instrumental in causing the will to be made in her favour. However, he pointed out that the process does not allow the Court to intervene and substitute its own judgment for that of the will-maker. If the evidence dispels any suspicion that the will-maker did not understand what the will provided for, so that the Court is satisfied on the balance of probabilities that the will-maker did know and approve of the contents of his will, then the grant of probate of the will will be confirmed and the application to revoke the grant of probate will be dismissed.(234)

If the suspicious circumstances, whatever their nature, are not dispelled on the balance of probabilities, the will will not be not admitted to probate. (235)

Suspicious circumstances summarised

Below is our overview of what Meagher JA described that the “suspicious circumstances rule”. It is followed by a short summary designed particularly for health care professionals acting as experts to consider when writing reports.

Meagher JA pointed out that the “rule” does not operate at large. Rather it operates only to displace presumptions of fact in favour of those seeking probate of a challenged will.(236) To displace a presumption, the challenger has to bring or point to evidence that raises doubt about the presumption. If that is achieved, then the person seeking probate of the will must dispel the doubt by proving, on the balance of probabilities, the actual existence of the fact previously presumed to exist. That is all a person seeking probate of the will has to prove. They do not have to go further and disprove any suspicion of undue influence or fraud. The onus of proving undue influence or fraud, on the balance of probabilities, is the person or persons alleging it.(237)

First to the presumptions:

1. Will-making (testamentary) capacity. If a will is rational on its face and is proved to have been duly executed, there is a presumption that a will-maker had will-making (testamentary) capacity when they made the challenged will.

2. Knowledge and approval of the contents of the will. If the presumption that the will-maker had will-making capacity when they made the will is not challenged, or the evidence supporting the challenge is insufficient to displace the presumption, or it is proven that the will-maker had capacity , another presumption arises, namely that the will-maker knew of and approved of the contents of the will at the time of its execution. (Note that this presumption appears to carry with it the idea that the will-maker appreciated the effect of what they were doing. (238) Are there suspicious circumstances?

Or put another way, are there circumstances which can throw are capable of throwing light on whether or not the will-maker had will-making capacity when they made the will, and do they give rise to a doubt about the will-maker’s capacity? As Meagher JA has pointed out circumstances which may suggest undue influence or fraud will often also give rise to a suspicion or doubt as to the will-maker's knowledge and approval of the contents of the will.(239)

1. Will-making capacity. Whether or not the maker of a challenged will had will-making capacity at the time they made that will is determined by a consideration of the evidence of a range of sources including family members and other social contacts contemporaneous with the will-making, legal practitioners, medical practitioners and other health care professionals who had professional contact with the will-maker around the time the will-maker made the will, and medical practitioners who made ex post facto assessments of the will-maker’s will-making capacity after the will had been made , and usually after the death of the will-maker.

If that evidence raises a sufficient doubt for the judge to find that the presumption of will-making capacity is displaced, then the person seeking probate of the will has to prove, on the balance of probabilities, that the will-maker had capacity when they made the will. Otherwise the challenged will will not be admitted to probate. As the High Court pointed out (in a joint judgment of Dixon CJ, Webb and Kitto JJ), the effect of such a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court. After that examination has been made, any residual doubt will not enough to defeat the claim for probate unless the court considers the doubt to be substantial enough to preclude a belief that the challenged will was the will of a will-maker who possessed sound mind, memory and understanding at the time they executed that will.(240)

2. Knowledge and approval of the contents of the will. As to the presumption that the will-maker knew of, or approved of the contents of the will, evidence that the will-maker gave instructions for the will or that it was read over by or to the will-maker is said to be "the most satisfactory evidence" of actual knowledge of the contents of a will.(241) However, the presumption may be displaced or dispelled by suspicious circumstances such as:

a. the mental acuity of the will-maker, including any presence of mental disorder, b. the complexity of the will and the estate being disposed of, c. whether the challenged will constituted a significant change from a prior will; d. the exclusion or non-exclusion of persons naturally having a claim upon the will-maker, e. whether there had been an opportunity in the preparation and execution of the will for reflection and independent advice, and f. where a person who played a part in the preparation of the will takes a substantial benefit in the will.(242)

As Meagher JA pointed out, if such circumstances give rise to a doubt as to the will-maker’s knowledge of and approval of the contents of the will, those seeking probate of the will must dispel that doubt by proving, on the balance of probabilities, that the will-maker appreciated the effect of what they were doing. Those seeking probate of the will do not have to go further and disprove any suspicion of undue influence or fraud. This is because approval of the will, in this context, does not include that, in addition to knowing what they doing, the will-maker executed the will in the absence of coercion and fraud.(243)

In other words, what Meagher JA was saying (and Basten and Campbell JJA were agreeing with him) was that suspicious circumstances can play two roles in relation to the question of whether a challenged will should be admitted to probate. One role is to cause the judge hearing the case to displace a presumption of fact. This requires those seeking probate of the will to prove, on the balance of probabilities, the existence of the fact that the will-maker had will-making capacity when they made the challenged will and/or prove the fact that they knew of and approved of the contents of the will when they executed it. A second role of suspicious circumstances is to provide the evidential basis for those challenging the validity of the will to prove, on the balance of probabilities, that the will was made as a result of undue influence, including coercion, or fraud.(244)

We provide a summarised approach to this issue for health care professionals acting as experts to consider:

1. If a will is rational on its face and is proved to have been duly executed, there is a presumption that the will-maker had will-making (testamentary) capacity. If this isn’t challenged or there isn’t evidence to reverse the presumption, or it is proven that the will-maker had (testamentary) capacity, then there is a presumption that they also knew and approved of the contents of the will.
2. The presumption that the will-maker knew and approved of the contents of the will can be displaced by suspicious circumstances such as:
1. reduced mental acuity of the will-maker, including any presence of mental disorder;
2. the complexity of the will and the estate being disposed of;
3. whether the challenged will constituted a significant change from a prior will;
4. the exclusion or non-exclusion of persons naturally having a claim upon the will-maker;
5. whether there had been an opportunity in the preparation and execution of the will for reflection and independent advice;
6. where a person who played a part in the preparation of the will takes a substantial benefit in the will.
3. The factors outlined above may also provide evidential basis for those challenging the validity of the will to prove, on the balance of probabilities that the will was made as a result of undue influence.

4.7.3 Testamentary or probate undue influence

The most succinct description of testamentary (or probate) undue influence in relation to will-making was given by Sir James Hannen P in 1885 as follows:

To be undue influence in the eye of the law there must be – to sum it up in a word – coercion. _(245)_

A few lines later he continued:

It is only when the will of the person who becomes the testator is coerced into doing something he or she has no desire to do, that it is undue influence.(246)

Hood J of the Supreme Court of Victoria was similarly succinct when in 1897 he said:

To constitute undue influence there must be coercion or pressure, so as to overpower the volition of the testatrix; there must be some substitution of another mind for hers.(247)

In 1868, Sir J.P. Wilde (later Lord Penzance) was more discursive. He noted that to make a valid will the will-maker must be a free agent, but that not all influences were unlawful. He continued:

[P]ressure of whatever character, whether acting on the fears or the hopes, if so exerted as to overcome the volition without convincing the judgment, is a species of restraint under which no valid will can be made. Importunity or threats, such as the testator has not the courage to resist, moral command asserted and yielded to for the sake of peace and quiet, or of escaping from distress of mind or social discomfort, these, if carried to a degree in which the free play of the testator’s judgment, discretion or wishes is overborne, will constitute undue influence, though no force is either used or threatened.(248)

It is worth noting that the California Welfare and Institutions Code §15610.7 (2013 defines undue influence to mean: “Excessive persuasion that causes another person to act or refrain from acting by overcoming that person's free will and results in inequity”.

It should be noted that the position previously established in New South Wales, based on the 19^th century English authority, was that to succeed with a claim for undue influence, the applicant has to prove the actual coercion. Undue influence cannot be inferred; consequently evidence of circumstances consistent with coercion, but not amounting to proof of coercion, was not enough.(249) This led Windeyer J to point out in Revie v Druitt that it was difficult to prove undue influence and that he knew of no case in New South Wales where the issue has been successfully raised.(250)

The issue of the comparatively higher threshold for proving undue influence in this setting after death, compared with the less onerous threshold for proving it in life (e.g. in regards to gifting) has been debated for some time.(251) In its 1986 report, “Wills: Execution and Revocation” the New South Wales Law Reform Commission noted that the strict law of probate, under which undue influence cannot be inferred, permitted if not encouraged pressure, particularly on the old and feeble and that this had led one of its consultants to suggest that equitable principles, including presumptions of influence, should be introduced into the law of wills.(252) The Commission did not recommend either way on the matter. Kerridge has stated, in regards to this issue; “English Law provides scandalously little protection for the old and infirm”.(253) It would appear that the judges have acted to develop the common law (judge-made law) to overcome concerns that some will-makers will die having made wills that do not represent their true intentions and which cannot be rectified after their death.(254)

In 2003 in the Supreme Court of Queensland, and relying on late 20^th century authority, Jones J said:

Where a will, apparently regularly executed, by a person of competent understanding is challenged on the ground of undue influence the burden of establishing that its execution was so influenced lies on the person making the assertion.

To succeed in this … the defendant must prove the following:-

1. that the plaintiff had the capacity to influence the complainant;
2. the influence was exercised;
3. its exercise was undue
4. its exercise brought about the transaction.(255)

The standard of proof is always on the balance of probabilities. However, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove.(256) Mere suspicion on behalf of a disappointed potential beneficiary, without more, is not sufficient to suggest that the will-maker was overcome by undue influence.(257) In many cases those alleging undue influence will have to rely on circumstantial evidence to prove it. This is because the source of the best evidence on the matter, the will-maker, is already dead, and those against whom the undue influence is alleged will usually deny it.

The accepted position used to be that, if the evidence relied upon was circumstantial, it was not sufficient to show that the circumstances surrounding the execution of the will were consistent with the hypothesis that the will was obtained by undue influence. It had to be shown that the circumstances were also inconsistent with a contrary hypothesis.(258) Finally, in a 2009 decision, Vickery J of the Supreme Court of Victoria criticised that standard of proof stating that:

[It] imports a formidable standard of proof and imposes a significant constriction on the capacity of the principle to provide an effective remedy in cases where testamentary undue influence may arise. It not only goes beyond the accepted civil standard of proof applied in Australia in cases sought to be made out by circumstantial evidence, but the formulation equates to the criminal standard, and arguably even goes beyond that standard.(259)

Following the well-established Australian position that the standard of proof in civil cases is always proof on the balance of probabilities, Vickery J said that where an allegation of undue influence required a probate court to draw an inference from circumstantial evidence, the court must be satisfied that the circumstances raised a more probable inference in favour of what was alleged than not, after the evidence on the question had been evaluated as a whole.(260) Vickery J went on to point out:

An allegation of testamentary undue influence is a serious matter with potentially significant consequences for the expression of the will of a testator and for the testamentary dispositions made under it. Further, the exercise of undue influence in a testamentary context may also be regarded as an inherently unlikely event in the circumstances of most cases. Expectant beneficiaries do not ordinarily put pressure on elderly testators in an endeavour to change their minds against their will. Bearing these matters in mind, in the assessment of the evidence which has been marshalled in support of the allegation made in this case, and in arriving at the ultimate conclusion, I adopt and apply the approach of Dixon J in Briginshaw v Briginshaw and the majority in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd.(261)

Vickery J’s view of the standard of proof for testamentary undue influence in Victoria has now been adopted in Western Australia and New South Wales.(262) Arguably it has been part of the law of Queensland since 1941.(263)

After adopting Vickery J’s view of the standard of proof, Brereton J of the NSW Supreme Court continued:

That said, undue influence need not be proved by direct evidence: the question must be decided upon all the circumstances of the case …. In the context of civil proceedings, it is of course not necessary that the circumstances admit of no rational hypothesis inconsistent with undue influence; but undue influence must more probable than not be the true explanation.(264)

Hallen As J of the same Court noted that in looking at the question of undue influence, one must bear in mind the circumstances of the individual deceased will-maker. What may not constitute undue influence in the case of a person with a strong will and ordinary fortitude may constitute undue influence in the case of a more susceptible individual.(265)

This vulnerability factor had been acknowledged very early on in the law. In Wingrove v Wingrove, Sir James Hannen noted:

The interaction between the coercion may of course be of different kinds, it may be in the grossest form, such as actual confinement or violence, or a person in the last days or hours of life may have become so weak and feeble that very little pressure will be sufficient to bring about the desired result.(266)

Vickery J’S view was that the:

The key concept is that of ‘influence’. The influence moves from being benign and becomes undue at the point where it can no longer be said that in making the testamentary instrument the exercise represents the free, independent and voluntary will of the testator. It is the effect rather than the means which is the focus of the principle.(267)

In a 2011 case discussed at 4.4 above, Norris J of the English Chancery Division set out a statement of what he considered to be the English common law in relation to undue influence.(268) His statement of the law is set out at 4.4 above.

The means of undue influence, of which there are many beyond simple coercion, remain important. The California Welfare and Institutions Code §15610.7 (2013) states that in determining whether a result was produced by undue influence, all of the following shall be considered:

1. The vulnerability of the victim. Evidence of vulnerability may include, but is not limited to, incapacity, illness, disability, injury, age, education, impaired cognitive function, emotional distress, isolation, or dependency, and whether the influencer knew or should have known of the alleged victim's vulnerability.
2. The influencer's apparent authority. Evidence of apparent authority may include, but is not limited to, status as a fiduciary, family member, care provider, health care professional, legal professional, spiritual adviser, expert, or other qualification.
3. The actions or tactics used by the influence. Evidence of actions or tactics used may include, but is not limited to, all of the following:
   1. Controlling necessaries of life, medication, the victim's interactions with others, access to information, or sleep. b. Use of affection, intimidation, or coercion. c. Initiation of changes in personal or property rights, use of haste or secrecy in effecting those changes, effecting changes at inappropriate times & places,& claims of expertise in effecting changes.
4. The equity of the result. Evidence of the equity of the result may include, but is not limited to,
5. the economic consequences to the victim, any divergence from the victim's prior intent or course of conduct or dealing, the relationship of the value conveyed to the value of any services or consideration received, or the appropriateness of the change in light of the length and nature of the relationship. However, evidence of an inequitable result, without more, is not sufficient to prove undue influence.

Put together, the means of undue influence, the vulnerability of the testator, and the effect or the result are all important, although it has been suggested that the expert can only opine on vulnerability, authority and tactics used, but not on the equity of the result.(269)(270) These elements are consistent with the medical or scientific view of undue influence. It is consistent with what we know about the vulnerability, and inability to resist abuse and exploitation often conferred by syndromes such as delirium, dementia and incipient dementia (mild cognitive disorder). Importantly, not only can subtle pressure or influence have the “result” “effect” on will-makers to which Sir James Hannen referred to in 1885, and Justice Vickery in 2009, but the will-maker may not protest or even perceive that they are being pressured, coerced or influenced. This is called insight, and it is highly likely to be absent in cases of undue influence associated with these syndromes.

Further in regards to the issue of the standard of proof, in adopting Vickery J’s view in the Western Australia Supreme Court, Simmonds J noted that the case was a circumstantial one. He could not see any direct evidence of undue influence in the material relied upon in that case. However, he went on to note evidence from which “a more probable inference in favour of testamentary undue influence of Mr and Mrs Lewis (the beneficiaries) on Mr Wade (the will-maker).(271) These included:

1. the beneficiaries care of the will-maker prior to his signing the purported will (of 6 June 2006),
2. the will-maker’s age and frailty at the time the relevant will was made,
3. the change or changes in the testamentary dispositions made in the later disputed will relative to those in the earlier will as between particular beneficiaries,
4. the fact that instructions for the disputed will came from a beneficiary,
5. the condition of the will-maker at the meeting with the solicitor who drafted the disputed will,
6. the will-maker’s failure, when he met alone with the solicitor who drafted the disputed will to confirm the instructions given by one of the beneficiaries for that will,
7. the will-maker’s description of different provisions of the disputed will, and
8. the will-maker’s conduct in seeking to revoke the disputed will.(272)

There appears to be progress in the area of protection for vulnerable testators. Since Windeyer J’s observations in Revie v Druitt(273), in 2005 there have been several cases across Australia where the issue of undue influence has been successfully raised.(274) Most importantly, considerable thought has been given as to what does, and what does not, constitute undue influence.

In a case decided in July 2020 Emmett AJA sitting in the NSW Supreme Court dealing with a case in which it was alleged that a will-maker changed her will by making a codicil to it as a result of undue influence. He decided that the will-maker had sufficient understanding and knowledge of her assets and of the effect of the codicil when she signed it, including its effect in the context of her Will and the first codicil that she signed. Also, Emmett AJA was satisfied that the second codicil was not induced for “quietness sake” by any coercion or undue influence on the mind or will of the will-maker.(275)

In contrast, a case decided in August 2020, Robb J of the Supreme Court of New South Wales in which probate of the will-maker’s final will was revoked and probate was granted in relation to the second last will. The last will excluded the will-maker’s daughter. The second last will included both son and daughter. The last will was obtained through what Robb J held was undue influence. In a key paragraph he states:

In my view, constant importuning of an old and weakened person, with compromised testamentary capacity, is capable of overbearing the will of that testator, as much as more blatant forms of coercion. Here, I do not refer to the mere taking advantage of some relationship of influence under which the other party is susceptible. I refer to the situation where the testator effectively gives up and abandons free agency in order to stop being subject to incessant demands. A finding of undue influence for probate purposes may not be available where there is a basis for concluding that the testator has ultimately been persuaded to accept the demands of the particular beneficiary, even though the reasons given in support of the demands are wrong and unsupportable. The question is whether, in reality, the testator has made a “free” decision. However, where no reason can be found in the evidence that can explain the abandonment by a weakened and susceptible testator of the testator’s long-term cardinal testamentary intention, in the face of demands that are both incessant and obsessive, a conclusion of practical coercion may be available. That is the finding that I make in this case.(276)

4.7.4 The role of the expert in the assessment of undue influence

The concepts of will-making capacity, knowledge and approval of the contents of a will and indeed undue influence are distinct. Nevertheless, all three concepts will often be raised and dealt with in cases in which Supreme Courts in Australia are called upon to decide whether or not to grant probate of a contested will or revoke a grant of probate already made. Although the court must find that the will-maker had the capacity to make the contested will before the questions of the will-maker’s knowledge and approval of the contents of a will or of the undue influence of others on the will-maker become relevant, the evidence in the cases will cover all three issues and the judges will deal with all three issues.(277) Traditionally, for a court to make a finding of undue influence, it must first have found that the person possessed the capacity to make a will. However, in recent cases, refusals to grant probate and to revoke a grant of probate have been made on various combinations of the three grounds of lack of testamentary capacity, lack of knowledge and approval of contents, and undue influence simultaneously.(278) Consequently the clinician, as an expert witness, will need to consider the evidence made available to them in terms of all three issues when drafting their report as the judge’s determination of the case will be made taking into account the evidence of that report.

To assist clinician experts with the question of a will-maker’s vulnerability to undue influence, an international task force has outlined the kind of risk factors that make a will-maker vulnerable to undue influence.(279) These include:

1. Relationship risk factors namely, “confidential” or close relationships between vulnerable will-makers and a range of family members, friends, associates or carers.
2. Social or environmental risk factors such as dependency and isolation.
3. Psychological factors such as delirium; emotional vulnerability conferred by grief, loneliness, death bed situations and sexual bargaining; personality traits such as dependency, psychiatric illnesses such as depression, psychosis and anxiety, and cognitive impairment. With regards to cognitive impairment, Shulman et al’s threshold concept suggests that a will-maker with only mild impairment of cognitive function has to be subjected to a severe level influence to the point of coercion or containment before that influence would be considered undue. However, as the disease progresses to more severe dementia the person would be more susceptible to subtle influence.(280) This in turn must be tempered by an understanding of the person’s individual pattern of cognitive deficits such that someone with only mild cognitive impairment associated with frontal lobe deficits in judgment may be particularly susceptible to influence even though their dementia is only mild.
4. Legal risk factors such as the procurement of the will by the beneficiary who is favoured in the will, unnatural provisions which exclude natural beneficiaries, and a will which is inconsistent with previous wishes(281)

Clinicians should be mindful that there are also probably “‘protective” or mitigating factors which render a person resistant to the opinion and advice of others. These might include non-specific suspiciousness towards all and sundry including possible “influencers” (this contrasts with suspicion or paranoid ideation focused on one person who is a possible beneficiary which can be exploited by an “influencer” who may fuel the paranoia and encourage exclusion of that person from the will). Similarly, personality traits of stubbornness, intransigence and belligerence may be protective against influence.

Furthermore, while some disabled older people are vulnerable to the influence of carers, others use their wealth to manipulate carers. It is not unusual for older persons with financial resources to bargain with carers, using promises of will bequests to secure promises of care.(282)

4.8 Court intervention to revoke or alter a will made by a person lacking will-making capacity

The matters dealt with above may only be raised in the context of an application for probate or the revocation of probate of a will-maker who has died. The Supreme Courts of all the States and the two Territories have powers to make or alter wills or to revoke them in whole or on part during the lifetime of a person who does not have will-making capacity.(283) In Tasmania the Guardianship and Administration Board has the power to make a will on behalf of a person who does not have will-making capacity.(284)

The South Australian case of Public Trustee v Phillips provides an example of a classic case of a will made by an elderly person with dementia acting under the undue influence of another.(285) Mrs Phillips was in her mid-seventies in 1996 when the then Guardianship Board of South Australia found that she had dementia and was unable to manage her own affairs. The Board appointed the Public Trustee to administer her financial affairs for her. The evidence was that Mrs Phillips had been unable to manage her affairs because of dementia from about 1993. In 1992 she came under the influence of a Mr Venning who persuaded her to buy a car, although she didn’t drive, and to sell her home unit and buy a house. Mrs Phillips then executed a power of attorney appointing Mr Venning as her attorney. Acting under the power of attorney, Mr Venning undertook a number of transactions in relation to Mrs Phillips’ property. These transactions disadvantaged her and substantially advantaged him. In May 1993 Mrs Phillips made a will appointing Mr Venning as her sole executor and allowing him to control the disposition of her estate and to direct it to himself if he so wished. Doyle CJ found that Mrs Phillips made this will as a result of the influence exercised over her by Mr Venning and without a proper appreciation of his motives.

Under the Wills Act 1936 (SA) the Supreme Court may make an order revoking the will of a person who lacks will-making capacity. It may also make or alter the will of such a person.(286) The Public Trustee, as administrator of Mrs Phillips’s estate, was given leave to apply for such an order. Doyle CJ was satisfied that while Mrs Phillips had lost will-making capacity she had indicated that she wanted her son to inherit her estate. She would not want Mr Venning to benefit by inheriting her estate and that she would not want her 1993 will to remain unrevoked. Doyle CJ revoked that will.(287)

As already noted, the Guardianship and Administration Board of Tasmania has the power to authorise the making of a will on behalf of a person who does not have will-making capacity. However, the Board may direct the application to it be made to the Supreme Court.(288) While the Board may authorise the making of a will and revoke any will made under its orders, it does not have the capacity to revoke a will made by a person when they did not have will-making capacity.(289) However, the Supreme Court has this power within its broad power to revoke a will of a person who lacks will-making capacity.(290)

4.9 Making and changing wills where will-making capacity is in doubt – the role of the lawyer and the role of the capacity assessor

4.9.1 The practice implication for lawyers arising from the current law – an overview of general considerations

The test for will-making capacity is long-standing and stable, yet not so intransigent as to fail to take into account new medical, psychiatric and psychological knowledge and the fact that many more people are much wealthier than in the 19^th century with a wider range of assets.

There is an expectation that solicitors will take great care and careful notes when obtaining instructions from those whose will-making capacity may be in doubt. They are also expected, both at the time they take the instructions for the will and again at the time of the will is executed, if there is a significant gap between those two events, to obtain medical and other appropriate advice about whether the will-maker can meet all the elements of the legal test for will-making capacity.(291)

The positive attitude of the courts to the evidence of those who were familiar with the will-maker in day to day life and who were lay to medicine is shown in the following examples. A specialist geriatrician gave an opinion more than four years after the death of the will-maker that he lacked capacity when he made his last will. However, this opinion was not accepted because the contrary evidence of a number of witnesses who had extensive contact with the will-maker.(292) The evidence of a will-maker’s general practitioner was found not to be particularly helpful and the trial judge applied the evidence of the expert witnesses only to the extent that it supported rather than trumped or contradicted the evidence from other non-expert sources.(293) In a case in which the will-maker made a will in 1995 and was made the subject of a financial management order by the then Guardianship Tribunal of New South Wales in 2000, experienced consultant psychiatrists were used by both sides.(294) One psychiatrist said that the will-maker had capacity in 1995; the other took the contrary view. The trial judge considered neither expert witness convincing, partly because they both relied on statements excluded from the evidence but also because they had little evidence of the day to day life of the will-maker to assist them.(295) The judge gave detailed consideration to the evidence of the non-expert witnesses.(296)

There is a tendency to treat the solicitors who took the instructions and drafted the contested will as independent witnesses when consideration is given to their views about the capacity of will-maker to make a will.

Some cases also show the respect, even the preference, that is given to the evidence of those able to relate their observations of the will-maker at, or about, the time the will was made.(297) As a result, it does not follow that the evidence of medical specialists or psychologists, no matter how eminent, will be accepted in preference to the evidence of the solicitor who took the instructions and was involved with the execution of the will or in preference to the evidence of other eye-witnesses. Nevertheless in cases involving challenges to wills, medical evidence about will-making capacity and related issues is becoming more widely used. It is carefully considered by the judges. This trend is more apparent in the more recent cases.(298) For further consideration of these matters in slightly different contexts see 4.9.4.5, 4.9.4.7 and 4.9.6.

It is also essential that doctors and other expert witnesses are advised of the legal test for will-making capacity before they provide their opinions.(299) That issue and the attitude of the courts to the evidence of health professionals retained to give expert witness opinions about a person’s will-making capacity after the person’s death are reflected in Seale v Cross.(300) In that case, a doctor gave an opinion after the death of the will-maker and more than four years after the will was made. The opinion was to the effect that the will-maker did not have will-making capacity when she made her last will.(301) The doctor’s evidence was not given much weight because it was based on someone else’s diagnosis of “emerging Alzheimer’s disease” and the doctor’s assumption that such a diagnosis was inconsistent with will-making capacity.(302) Also the doctor’s opinion did not show an understanding of the legal test for incapacity.(303) On the other hand, the evidence of will-making capacity came from one of those seeking to prove the validity of the will who was a registered nurse and who had had a great deal of contact with the will-maker, especially during the latter part of her life.(304) The validity of the will was upheld.

This review of the cases indicates an apparent preference by judges to uphold the right of a person to make a will even if they have cognitive defects and are the subject of guardianship or administration orders made by tribunals exercising guardianship jurisdiction.

The fact that those who have been found to lack decision-making capacity and to be in need of either a guardian or an administrator or both, and the legal policy in favour of upholding the right of adults to make wills even if they are cognitively impaired, emphasises the need for doctors and other health professionals to appreciate the differences between the legal tests for will-making capacity and for capacity for other purposes. This situation creates tensions between those trying to give effect to a person’s capacity to make or remake a will and service providers seeking to protect those with cognitive defects from exploitation. However, that is only one example of the complexities, tensions and uncertainties that can arise when action is taken to help or pressure a person to make that will when their will-making capacity is, or may be seen to be in the future to have been, in doubt when they made the will in question.

4.9.2 Caution when taking instructions for the drafting of a will

It is not always easy for solicitors to identify those clients who are incompetent because people with early dementia may appear relatively normal on casual conversation and maintain their social graces particularly in earlier stages of the disease.(305) This observation is incorporated in dementia staging systems such as the Clinical Dementia Rating Scale, which acknowledge that dementia may not be evident to others until moderate to severe stages of the disease.(306)

Further, lawyers cannot always rely on family members to inform them that a client has dementia because families often deny early signs of dementia out of fear of the diagnosis or dismiss such signs as “normal for that age”. Even health care professionals dealing with the client may be no more alert to the diagnosis. Dementia can be missed unless it is specifically looked for. Family doctors, many of whom rely on passive identification rather than active screening of dementia for diagnosis, often fail to identify dementia. Studies have shown consistently that up to 80-91% of cases of dementia are missed by general practitioners.(307) The same is often true for nursing staff in nursing homes(308) where the current rate of undetected dementia is around 50% (Lang L, Clifford A, Wei L, et al. Prevalence and determinants of undetected dementia in the community: a systematic literature review and a meta-analysis. _BMJ Open. 2017;7(2):e011146.).

Finally, the determination of testamentary capacity is a highly specialised task based on structured assessment.(309)(310) Purser(311) noted that the assessment of testamentary capacity in the 21^st century has become increasingly complex necessitating both an interdisciplinary approach utilising the skills of both legal and medical practitioners, and clear assessment processes.

As already noted, it is therefore prudent in all cases, if not essential, to document the process of taking instructions from all clients over 65. It is also wise to normalise the process so as not to alienate elderly clients who may be offended by any suggestion of infirmity or incapacity. The following explanation might be helpful:

I hope you don’t mind, but I’m going to ask you some questions in order to properly document this will-making process. I do this with everyone over 65 who comes to see me.

It may be helpful to ask the client to:

1. “describe your assets”; and,
2. “describe who your heirs are, how they are related to you”; and
3. “why are you disposing of your property in the way you have chosen”.

It is preferable if the health care professional can be given information about previous wills and the person’s will-making pattern. The person changing their will should be questioned about the rationale behind any proposed changes from the way they had previously disposed of their property in their will.

Frost and others have noted that it is insufficient for a will-maker to be able merely to answer simple or familiar, closed (requiring a “yes” or “no” answer) or leading questions and that rather, the draftsman’s task is to establish that the instructions come from rational thought.(312) The authors cited a 1944 case from the Supreme Court of Canada, _Leger v Poirer, where the pitfalls of drawing conclusions from inadequate or superficial questioning were highlighted:

But there is no doubt whatever that we may have testamentary incapacity accompanied by a deceptive ability to answer questions of ordinary and usual matters; that is the mind may be incapable of carrying apprehension beyond a limited range of familiar and suggested topics. A “disposing mind and memory” is one able to comprehend, of its own initiative and volition, the essential elements of will-making, property, objects, just claims to consideration, revocation of existing dispositions, and the like...(313)

Thus, when checking the knowledge or understanding of the client, they should be asked to explain the effect of what they are doing in their own words. Their responses should be recorded verbatim. It is important to remember that an affirmative answer to the question “Do you understand what this will contains?” is not an adequate reflection of understanding.

Further, as orientation and social presentation are separate from the cognitive functions required for will-making, the observation that a person was “pleasant, well–dressed and chatted about the weather” or “knew who the Prime Minister is” does not help prove that they had capacity to carry out the will-making process competently.

It is prudent to inquire specifically whether the will-maker has been the subject of any application to the guardianship and administration tribunal in the relevant State or Territory and whether any administration or financial management order has been made in relation to them by that tribunal, any other tribunal or a Supreme Court. It is also wise to enquire whether any enduring power of attorney is in operation or whether the person has made an appointment of enduring guardian, and who the enduring attorney and the enduring guardian are. It is also useful to check whether the person is still making their own medical consent decisions or whether their “person responsible” or other legally authorised substitute decision-maker is doing that for them. While none of these matters demonstrates that the person has lost will-making capacity, they put people on notice that they may have done so.

4.9.3 Conditions which might affect capacity

Banks v Goodfellow was based on a case of psychosis. These days cases of dementia far outnumber cases of psychosis as the basis for will challenges.(314) In a case series of 25 challenges to testamentary capacity referred to a Canadian psychiatrist, 40% were based on dementia, 28% were alcohol related, 28% based on neurological or psychiatric disorder, 20% to personality disorder and 12% related to suicide.(315) The personal experience with will challenges of one of the authors of this book reflects a similar, but greater, preponderance of dementia amongst a heterogeneous group of syndromes observed. In a series of 41 will challenges, 78% were based on dementia, 7% on delirium or complex medical conditions, 5% on schizophrenia or paranoid states, and 2.5% each on alcohol, personality disorder, bipolar disorder and depression/suicide.(316) Although not as frequently represented as the primary condition, alcohol abuse was the most common co-morbid condition. Clearly this will vary according to the specialty of the expert and the patterns of referral to psychologists or geriatricians may well differ.

4.9.3.1 Dementia and testamentary capacity: definition and causes

Dementia is a neurodegenerative syndrome characterised by the development of cognitive (intellectual) deficits causing functional impairment. The DSM- V criteria for dementia, termed ‘Major Neurocognitive Disorder” are:

A. Evidence of significant cognitive decline from a previous level of performance in one or more cognitive domains — such as complex attention, executive function, learning, memory, language, perceptual-motor or social cognition. This evidence should consist of:

1. Concern of the individual, a knowledgeable informant (such as a friend or family member), or the clinician that there’s been a significant decline in cognitive function; and
2. A substantial impairment in cognitive performance, preferably documented by standardized neuropsychological testing. Or if neuropsychological testing isn’t available, another type of qualified assessment.

B. The cognitive deficits interfere with independence in everyday activities (e.g., at a minimum, requiring assistance with complex instrumental activities of daily living, such as paying bills or managing medications).

C. The cognitive deficits don’t occur exclusively in context of a delirium;

D. The cognitive deficits are not better explained by another mental disorder.(317)

To satisfy the criteria for a diagnosis of dementia or Major Neurocognitive Disorder, these cognitive deficits must cause significant impairment in social and occupational functioning and represent a significant decline from a previous level of functioning. As already noted, a diagnosis of dementia does not preclude testamentary capacity.

There are over one hundred causes of dementia, although Alzheimer’s disease is thought to be the most common cause, followed by Vascular Dementia and Lewy Body Dementia, depending on whether clinical or autopsy diagnoses are examined. Mixed dementia is far more common than was previously suspected. Approximate relative contributions of various causes of dementia are as follows: pure Alzheimer’s Disease 35%; Mixed Vascular Dementia /Alzheimer’s disease 15%; Pure Vascular Disease 10%; Lewy Body Dementia 15%; Fronto-Temporal Lobe Disease 5%; and Other 20%.(318) Each type of dementia is associated with a particular type and distribution of brain pathology, cognitive profile and rate and nature of decline with variable impact on capacity.

Alzheimer’s disease is a progressive disorder characterised by the deposition of protein aggregates called plaques and neuronal inclusions called tangles. These develop initially in the temporal lobe regions of the brain (responsible for memory) but spread to involve other cortical areas. Accordingly, Alzheimers’ disease is manifested by early memory loss accompanied by multiple deficits in language, motor skills and perception and with gradually continuing global cognitive decline and progressive worsening of function.(319)

Vascular dementia is defined as dementia that results from vascular or circulatory lesions (i.e. cerebrovascular disease) in the brain.(320) Such lesions may include obvious stroke/s involving occlusion of large vessels but there are multiple types of “small vessel dementias” which may involve tiny complete or incomplete “silent strokes” (of which the person may be unaware), disease of the blood vessels and surrounding brain and hemorrhagic lesions. The pattern of deficits depends on the location and distribution of such lesions but in general, patients with vascular dementia have only modest problems with memory but with significant executive (i.e. problems with planning and judgment) dysfunction (321) so much so that decline in frontal executive function comprise part of the DMS-V criteria for Major Vascular Neurocognitive Disorder.(322)

Dementia with Lewy Bodies has been acknowledged increasingly as a relatively common cause of dementia; some would say the second most common cause of dementia after Alzheimer’s disease, at least at autopsy.(323) It is characterised by the presence of spherical bodies inside brain neurons and a clinical presentation of dementia with early problems with attention, judgment and visuospatial difficulties predominating over memory deficits, falls, signs of Parkinsonism and prominent hallucinations.(324)

Distinguishing the cause of dementia in a person whose will-making capacity is being questioned is relevant insofar as it may help predict the likelihood of certain deficits at different stages of the disease, although there is still much variation between individuals. For example, as stated previously, someone with vascular dementia may have early loss of frontal, “executive” functions such as judgment and reasoning, because of the vulnerability of the frontal lobe to the type of cerebrovascular pathology that causes vascular dementia, and accordingly early difficulties weighing the claims of beneficiaries.

4.9.3.1.1 The relevance of severity of dementia

An assessment of the severity of dementia is usually based on the extent of the person’s cognitive and functional impairment. A person in the early stages of dementia may require minimal assistance or only prompting in their performance of activities of daily living. At the later stage they may be totally dependent on others for basic activities such as feeding and toileting, and in the final stages of dementia the person may be bedridden. Thus, although there is probably only a modest correlation between performance on scales which measure functional impairment and will-making capacity, performance on such scales may give an idea of the severity of the person’s dementia.

Also, general cognitive screens such as the Mini Mental State Examination (MMSE) do not identify incapable people with any degree of sensitivity or specificity except at the extremes of performance.(325) (326) The MMSE is a bedside screen of cognitive function. It is not a diagnosis; it is merely a guide for rating severity. A MMSE score between 18 and 24 suggests mild dementia; a score of 10 to 17 suggests moderate dementia and less than 10, severe dementia. These thresholds are very loose as scores on the MMSE vary according to education, language, how it is administered and how the patient feels on the day.(327) Further, the MMSE is limited in value because of its failure to include items which test frontal or executive function which are crucial in the will-making process.(328) In slowly progressive dementias such as Alzheimer’s disease, a person may lose 3 to 4 points on the MMSE per year.(329)

When assessing the relevance of severity to capacity, it is important to consider each case on its individual merits. In particular, the job of the expert is to consider the cognitive capacity of the person in the context of the complexity or “task specific” aspects of the decision to be made, as suggested by Shulman and others.(330) For example, a person with severe dementia may still have capacity to distribute a simple estate, for example if their only asset was their house to be bequeathed to one surviving relative, while a person with mild dementia may have difficulty apportioning an estate involving a complex share and real estate portfolio in various proportions amongst multiple beneficiaries.(331) Importantly, dementia does not have to be severe to affect one’s capacity for highly complex reasoning such as appraisal of family members as discussed in Chapter 1.2.

4.9.3.1.2 Mild Cognitive Impairment

Over the last 20 years researchers have distinguished a pre-stage or incipient dementia, known as Mild Cognitive Impairment (MCI), a boundary or transitional state between normal aging and dementia. Studies suggest that these individuals tend to progress to probable Alzheimer’s disease at a rate varying between 1-25% per year, most commonly between 10% to 15% per year.(332)

The equivalent disorder in DSM-V, Minor Neurocognitive Disorder, is categorized by:

A. Evidence of modest cognitive decline from a previous level of performance in one or more cognitive domains — such as complex attention, executive function, learning, memory, language, perceptual-motor or social cognition. This evidence should consist of:

1. Concern of the individual, a knowledgeable informant (such as a friend or family member), or the clinician that there’s been a mild decline in cognitive function; and
2. A modest impairment in cognitive performance, preferably documented by standardized neuropsychological testing. Of if neuropsychological testing isn’t available, another type of qualified assessment.

B. The cognitive deficits do not interfere with capacity for independence in everyday activities (i.e., complex instrumental activities of daily living such as paying bills or managing medications are preserved, but greater effort, compensatory strategies, or accommodation may be required).

C. The cognitive deficits don’t occur exclusively in context of a delirium,

D. The cognitive deficits are not better explained by another mental disorder.(333)

In 2010, the United States National Institute on Aging and the Alzheimer's Association (NIAAA) convened a working group to revise the criteria for the symptomatic pre-dementia phase of Alzheimer's disease (AD). The criteria for the Clinical and Cognitive Syndrome of MCI developed by the NIAAA include: (334)

1. Concern regarding a change in cognition

There should be evidence of concern about a change in cognition, in comparison to the person‟s prior level. This concern can be obtained from the patient, from an informant who knows the patient well, or from a skilled clinician observing the patient.

2. Impairment in one or more cognitive domains

There should be evidence of lower performance in one or more cognitive domains that is greater than would be expected for the patient’s age and educational background. If repeated assessments are available, then a decline in performance should be evident over time. This change can occur in a variety of cognitive domains, including: memory, executive function, attention, language and visuospatial skills. An impairment in episodic memory (i.e., the ability to learn and retain new information) is seen most commonly in MCI patients who subsequently progress to a diagnosis of AD.

3. Preservation of independence in functional abilities

Persons with MCI commonly have mild problems performing complex functional tasks they used to be able to perform, such as paying bills, preparing a meal, shopping at the store. They may take more time, be less efficient, and make more errors at performing such activities than in the past. Nevertheless, they generally maintain their independence of function in daily life, with minimal aids or assistance.

4. Not demented

These cognitive changes should be sufficiently mild that there is no evidence of a significant impairment in social or occupational functioning. It should be emphasized that the diagnosis of MCI requires evidence of intra-individual change. If an individual has only been evaluated once, change will need to be inferred from the history and/or evidence that cognitive performance is impaired beyond what would have been expected for that individual. Serial evaluations are of course optimal, but may not be feasible in a particular circumstance.

It is important to note that while functional impairment distinguishes MCI from dementia, this is more of a degree, than an absolute distinction because all criteria refer to either “mild problems” or “extra compensation, effort or accommodation” required for complex functional tasks. Indeed, there is good evidence that complex activities including, but not limited to, driving, complex financial management and relationship appraisal may be impaired in MCI (335) particularly MCI that involves impairment in executive function.(336) Accordingly, when it comes to MCI and will-making, it is best to rely on the usual formula of considering the complexity of the task versus the cognitive or intellectual reserve, such that most people with MCI will have will-making capacity, except perhaps for people with executive dysfunction (ie with deficits in judgment and planning), making complex wills, and/or involving complex estates and/or complex situations with family conflict. However, we reiterate our mantra that every case needs to be assessed on its own individual merit and no broad conclusions drawn.

4.9.3.1.3 Dementia and lucid intervals

As stated previously, the courts have long held the idea that those with mental illnesses may be able to make wills during lucid periods. This is perhaps most relevant to those with delirium (see below at 4.9.3.3). However, it is generally agreed among clinicians that while persons with dementia may have better days or better times of the day, those with advanced dementia do not “recover” from dementia during lucid intervals. Thus they probably don’t have “lucid-enough” intervals to make a will competently during those periods, if they otherwise can’t make a will competently.

While much has been made of the determination of mental capacity at the precise moment the will is made, it is often difficult to ignore the “before and after evidence”.(337) Windeyer J, in Robinson v Spratt accepted evidence as to “good days and bad days” but noted:

The clear psychiatric evidence is that the deceased was on a downhill path from 1989 onwards as a result of dementia. There were some better periods but the path was always downwards.(338)

This call for a critical rethink of the legal concept of lucid intervals as applied to will challenges and dementia has recently been articulated by Shulman et al.(339) The authors emphasise that cognitive fluctuations in dementia are most commonly in the specific area of attention and not in the cognitive domains essential to testamentary capacity, such as executive function and episodic memory. Moreover, given that duration of such fluctuations are usually of the order of seconds or minutes, even if true and full lucidity was achieved, it is unlikely to be of sufficient duration to allow the testator to consider and understand all of the factors needed to make a valid will.

Because the concept of “lucidity” is so conceptually flawed, we prefer the term “good days and bad days” – the latter most likely to occur in Vascular and Lewy Body dementias. For cases where good and bad days were considered determinative in upholding testamentary capacity in case of Vascular dementia.(340)

4.9.3.2 Aphasia

One of the hallmarks of capacity is the ability to communicate a preference or a decision and is thus dependent on language performance. Aphasia is defined as an impairment in the understanding or transmission of ideas by language in any of its forms, namely, speaking (expressive and receptive speech), reading or writing, which is due to brain injury or disease, (341) most commonly stroke. The presence of aphasia may thus hamper the assessment of both capacity and overall cognitive function. The challenge for the clinician is to determine the extent of cognitive impairment, if any, accompanying aphasia.(342) Indeed there is mounting evidence to suggest that it is impossible to predict the status of other aspects of cognition on the basis of language skills.(343) Higher level executive skills such as involved in judgment, flexibility, planning and foresight are the most vulnerable to the effects of brain damage associated with aphasia and must be carefully screened for in such patients.(344) Therefore, previous suggestions of using prompted recall and recognition memory with cues (e.g. identifying the correct response from a list of correct and incorrect answers) to maximize communication with an aphasic will-maker provide fairly gross estimation of understanding and should be best interpreted by a speech-language pathologist.(345) It is advised that a speech-language pathologist facilitate communication between a client with language disturbance and solicitor or a client and an expert assessing capacity.

4.9.3.3 Delirium

Delirium is a transient, often fluctuating impairment in consciousness, attention and cognition. DSM-V defines delirium according to five criteria, namely:

1. A disturbance in attention (i.e., reduced ability to direct, focus, sustain, and shift attention) and awareness (reduced orientation to the environment).
2. The disturbance develops over a short period of time (usually hours to a few days), represents an acute change from baseline attention and awareness, and tends to fluctuate in severity during the course of a day.
3. An additional disturbance in cognition (e.g. memory deficit, disorientation, language, visuospatial ability, or perception).
4. The disturbances in Criteria A and C are not better explained by a pre-existing, established or evolving neurocognitive disorder and do not occur in the context of a severely reduced level of arousal such as coma.
5. There is evidence from the history, physical examination or laboratory findings that the disturbance is a direct physiological consequence of another medical condition, substance intoxication or withdrawal (i.e. due to a drug of abuse or to a medication), or exposure to a toxin, or is due to multiple etiologies.

Delirium may mimic dementia, but it is of sudden onset and is caused by underlying physical illness such as chest or urinary tract infection or drug toxicity. It is usually reversible once its underlying cause is treated; however it often complicates dementia by making the dementia appear temporarily worse. Delirium may affect will-making capacity due to its global effects on cognition, and particularly because of its effects on concentration, perception of reality, memory and reasoning, although the effect on will-making will depend largely on the severity of the delirium, its fluctuation, and the complexity of the will-making task.(346) The issue of delirium is usually relevant when instructions are taken in the hospital setting, particularly when someone decides, or is prompted, to make a will on their “death bed” or when they are extremely unwell. Delirium is notoriously missed in hospitals, and nursing homes alike, particularly amongst patients who are dying.(347) The irony is that the people who wish or need to make a will because they are approaching the end of their life, are often the very people who lack capacity to make a will. Dying will-makers are vulnerable to both delirium, and other physical and psychological comorbidities such as shortness of breath, pain, anxiety and the effects of opioids and benzodiazepines, all of which may potentially interfere with will-making capacity. Consequently, solicitors should not be autonomously approaching inpatients in hospitals to illicit instructions for wills without discussions and interactions with the treating doctor. Moreover, any doctor assessing a person’s will-making capacity, either contemporaneously or subsequently, should be extremely careful to assess whether the person has or had delirium when they made the relevant will, and be particularly vigilant in regards to deathbed wills.(348)

4.9.3.4 Alcohol and drug-related disorders

Alcohol-related disorder is an important co-morbid condition in documented will challenges, comprising 28% of the challenges in one small series.(349) Regardless of whether or not the will-maker suffered habitual intoxication, abuse or dependence, the effect of alcohol abuse is only relevant if the person was intoxicated, withdrawing from alcohol or suffering other consequences of alcohol abuse such as paranoid ideation or brain damage at the time of making the will, and that such mental disorder rendered the person incapable of performing one or more of the mental functions necessary to make a valid will.(350) (351) This was illustrated in Timbury v Coffee, a case in which the will-maker’s suspicions, distrust, resentment and tendency to hostility towards his wife as a result of his alcoholism were enough for the jury to find that he was “not of sound disposing mind” when he made his last will.(352) The overuse of alcohol can cause permanent brain damage and, as a’Beckett J pointed out in In re White, cause, to a great extent, the loss of a person’s will and intelligence such that they can easily be influenced when making their will.(353)

This is the case with any drug-related disorder. Drugs (and this means both therapeutic and recreational) or withdrawal from them, can cause changes in consciousness, perception of reality and reasoning all of which can impact on the will-making process. Drug effect can vary between subtly altering the way complex decisions are made at one extreme, to rendering a patient unconscious at the other.(354)

4.9.3.5 Psychotic conditions such as schizophrenia

Psychotic symptoms include delusions (fixed false ideas about poverty, theft, sin, paranoia etc) and hallucinations (false sensory perceptions such as hearing voices). Some elderly people suffer psychotic symptoms due to illnesses such as schizophrenia or bipolar disorder (sometimes called manic depressive disorder) which they have developed earlier in life and continue to suffer in old age while others present with such illnesses for the first time in old age. Psychotic symptoms may also complicate dementia. Up to 86% of sufferers have depression, 20% to 73% have delusions and 15% to 49% have hallucinations.(355) Paranoid ideation (including suspiciousness) or delusions not infrequently accompany the pre-stages or herald the onset of dementia, (356) particularly vascular dementia. As with alcohol and other drug related disorders, psychotic symptoms are only relevant if they render the person incapable of performing one or more of the mental functions necessary to make a valid will. The range of conditions in which delusions can arise, particularly in older will-makers, was well described in a 2018 judgment of Applegarth J of the Queensland Supreme Court.(357) This will be discussed further below in 4.9.5.6.

4.9.3.6 Mood disorders and suicide

Mood disorders such as depression will impact on the will-making process if they are accompanied by symptoms of hopelessness or delusions of persecution, poverty or sin which might effect the will-maker’s perception of his assets or relationships. As already noted, the act of suicide is not regarded as evidence per se of incapacity.(358) Suicide usually occurs in the context of psychiatric disorders such as depression, alcohol abuse and delusional beliefs, with or without concomitant brain disease, and its relevance to capacity must be interpreted in the light of these contextual psychiatric disorders as well as the nature of gifting set out in the will (i.e. whether it was expected or rational or otherwise) and the proximity of the making of the will to the writing of the suicide note and the suicide itself.(359) In a study of coroner records for 1565 deaths by suicide in Toronto, 20.7% of 285 available suicide notes were found to have will content. Of those, 72.9% were reported to have a major mood or psychotic disorder, but none had dementia. Fifteen of 19 toxicology samples showed alcohol, sedative hypnotic/benzodiazepine, opioid and/or recreational drugs were present.(360)

4.9.3.7 Personality disorder

As stated previously, the law draws a distinction between mere antipathy, albeit unreasonable, towards one who has a claim, and judgment affected by disorder of the mind. This was exemplified in the case of Re Estate of Griffith.(361) Mrs Griffith was a widow who made no provision for her son, her only child, in her final will. Prior to this, their relationship had irretrievably broken down such that they did not speak to each other during the last ten years of her life. Previously he had been a dutiful and loving son who was attentive to his mother’s needs. Mrs Griffith had taken strong exception to his relationship with a lady friend. Emotions of possessiveness and jealousy may have been involved. There was evidence of a 14 year history of bizarre and aggressive behaviour on her part culminating in her bursting into her son’s room in the early hours of the morning brandishing a kitchen knife screaming that she hated him and telling him to get out.

The psychiatric evidence offered was that she suffered a paranoid personality disorder which manifested itself in delusions that her son did not care for her, that he was a threat to her and that he suffered from serious character defects. The trial judge, Santow J, was unable to conclude either way that Mrs Griffith’s rejection of her son stemmed from a paranoid personality disorder or a delusion of such extremity that as to connote a condition of insanity. He went on to note that if he had had to find that Mrs Griffith had had a delusion in the form of “a fixed and incorrigible false belief” that she could not be reasoned out of, he would have done so. However, he noted that the party wishing to prove that the will was valid had to show that she had will-making capacity at the time she made the will and that they had failed to do so. The New South Wales Court of Appeal upheld Santow J’s decision as a correct view of the law.(362)

Gleeson CJ, with whom Handley JA agreed, noted that Santow J’s reasoning involved the premise that:

[I]t was unnecessary for him to make a positive finding that the testatrix was suffering from insane delusions in order for the onus of proof of testamentary capacity to fall upon the party propounding the will.(363)

At the end of his judgment Gleeson CJ noted that the evidence of the psychiatrist:

[A]dded sufficient weight to the contention that what was here involved was mental disturbance, and a judgment that could be characterised, not merely as being unfair, but as being the product of mental disorder.(364)

Court of Appeal’s decision stands for the proposition that a positive finding of delusion is not necessary to raise a doubt as to capacity. Gleeson CJ’s comments open up the possibility of the law catching up to where the knowledge of medicine is in relation to personality disorder. This knowledge includes a realisation that personality disorders can have just as distorting an effect on a will-maker’s capacity as can what the law has called since 1870 at least, “insane delusions”.(365)

Some personality disorders, such as paranoid (pervasive distrust and suspiciousness of others), borderline (pervasive instability of interpersonal relationships, self image and feelings) and narcissistic (pervasive grandiosity, need for admiration and lack of empathy) can present as serious disorders of mind, associated with abnormalities in mood, ideation and object relations (i.e. relations with loved ones). In severe cases, symptoms such as: (i) “splitting” namely distorted perceptions of others as belonging to either the idealized or all-good group, or the devalued or all-bad group (e.g. the good wife, the good grandson versus the bad sons and the bad wife); (ii) “idealization” namely attributing exaggerated positive qualities such as omnipotence and perfection to others; (iii) “devaluation”, namely attributing exaggerated negative qualities to others; and (iv) paranoid ideation with or without accompanying mood disturbance may poison affections towards beneficiaries and render a will-maker unable to adequately weigh the claims of potential beneficiaries.

Notwithstanding this, caution is advised when suggesting that personality disorder might be incompatible with will-making because the diagnosis of personality disorder is based on a life-long and enduring pattern of behaviour and relating to others. It is probably incompatible with sound disposition only in severe cases or during times of crisis or decompensation (i.e. when under stress, the person with personality disorder becomes particularly disturbed).

4.9.3.8 Brain injury

In a 2020 case, the will-maker, William, suffered, in 1979 at the age of 16, a catastrophic head injury, which brought about severe changes in his personality and intellect that were both permanent and constant. He made a number of wills, but it was the second last will dated 21 December 2011 and the last will dated 22 April 2016 that were in contention for admission to probate. After considering the evidence of William’s capacity and of his life, Robb J stated:

While the Court cannot ignore the devastating consequences of the brain injury that William suffered when he was 16, the evidence of the consequences of that injury to William’s cognitive capacity and his personality does not require a finding that William lacked testamentary capacity on the Banks v Goodfellow test. The making of his last will did not require William to exercise the sustained application, foresight, prudence and ability to plan ahead of which he had been deprived by his brain injury. Knowing of his declining health, he only needed to understand the need to properly weigh the claims of the persons who had a call on his estate. That is something that could be done in the present using the residual cognitive abilities of a person of above average intelligence. Ample proof of William’s cognitive capacity to achieve a properly balanced and just testamentary disposition is found in the fact that that is exactly what he achieved.(366)

An important issue identified in this case relevant to brain injury is, unlike dementia, a non-degenerative disorder of mind, which was sustained at a period substantially distanced from the will-making, and had remained relatively unchanged for some 40 years. To challenge the final will on the grounds of this disorder of mind would be to challenge all four of his previous wills.

4.9.4 Expert opinions – contemporaneous and retrospective

The importance of obtaining an expert assessment of a person’s will-making capacity before they make a will if their will-making capacity is in doubt is clear from the earlier parts of this chapter. It is also prudent to seek and obtain an expert assessment contemporaneously, if a challenge is considered likely, and it is feasible to obtain that assessment without risking the person dying before their will can be finalized. Despite the preference for contemporaneous evidence apparent from the decided cases, it is still worthwhile obtaining the (retrospective) opinion of an experienced specialist with the relevant expertise if the will is challenged after the death of the will-maker.

However, these expert opinions will have probative value only if the specialists retained are properly briefed as to the legal tests for will-making capacity and are provided with all the available and appropriate evidence. This includes documentary and other evidence about the will-maker’s capacity at the time they gave their instructions for, and executed, their will and any other relevant factual information. These matters are taken up in more detail below.

4.9.4.1 What kind of expert?

From the lawyer’s perspective, the first question is what kind of specialist is the most appropriate to give the expert opinion required in the circumstances they are dealing with. It is wise to retain a health care professional with relevant psychological (e.g. neuropsychologist), medical (e.g. neurologist or geriatrician) or psychiatric (e.g. general psychiatrist, forensic psychiatrist or psychogeriatrician) expertise and medico-legal experience. Different cases are more suited to different types of experts. For example, a psychiatrist may have special expertise to consider a case which relies on the presence of psychiatric disorder or psychotic symptoms. A neurologist or geriatrician may have special expertise in a case of delirium and complex medical conditions. A neuropsychologist may offer special expertise in a case in which there is little formal medical documentation of dementia and relies on extrapolation of behavioural disturbance to prove cognitive dysfunction.

When a health care professional is asked to act as an expert witness in any medico-legal case, they must turn their mind to the issue of expertise.(367) Codes of conduct require experts to note if a question falls outside their field of expertise, so it is useful to consider: “Am I the best person to comment on this case? Should I recommend someone else? ”. After agreeing to take on the case, but before embarking on any work, it is helpful to outline the terms of engagement such as availability, hourly fees, approximate total cost and the expected procedure for finalising the report and payment.

4.9.4.2 Assessment at the time the will is being made

As Santow J pointed out, if there is doubt about a person’s will-making capacity when they are making or remaking their will it is most prudent, if not essential, for the solicitor acting for the will-maker to have the will-maker examined by a health professional with expertise in assessing will-making capacity and to receive and consider that advice.(368) If there is any significant time period between when the instructions for the will are taken and the will is executed (actually made), expert opinion about the person’s will-making capacity should be obtained contemporaneously with each occasion.

The notion of contemporaneous assessment is only relative to the proximity with the will-making process. Ideally, the assessment should be made as close to the giving of instructions as possible, and in reference to the particular will being drafted, and not “testamentary capacity in general”. The expert should assess not whether the person has capacity to make a will, but rather, whether they have capacity to make a particular will at a particular time.

In such cases, the will document must give effect to the will-maker’s instructions and those instructions must continue to reflect the will-maker’s intentions. We would suggest that this last matter is to be inferred unless there is an evidential basis for believing that the will-maker changed their mind between giving instructions and executing the will. Crucially however for the will to be valid, the will-maker must know at the time they executed the will what they were doing and thus had sufficient mental capacity to carry out the juristic act which will-making involves. That specifically is what the will-maker must have capacity to understand in order to be found to have will-making capacity at the time they executed the will.(369)

4.9.4.3 What to provide to the expert making a contemporaneous assessment

The expert dealing with a matter while the will-maker is still alive should be provided with the following:

1. A concise statement of the legal test for will-making capacity;
2. All of the will-maker’s previous wills to establish the will-making pattern;
3. Evidence of previously established trust on the part of the will-maker e.g. previously appointed attorneys under powers of attorney or appointed enduring guardians;
4. Any medical notes (e.g. notes of the will-maker’s general practitioner and any specialist medical reports relevant to capacity);
5. A family tree to establish the accuracy of the will-maker’s recall of potential beneficiaries;
6. An account of the will-maker’s assets to assess the accuracy of the will-maker’s knowledge of their estate.

4.9.4.4 Making the contemporaneous assessment

Prior to assessing a client for a solicitor in a contemporaneous case it is essential that the expert be armed with the information outlined above. Consultation with the lawyer is important and sometimes it is helpful to have the solicitor present during the assessment. At the outset of the assessment, the expert assessor should establish the will-maker’s understanding of the nature and purpose of the assessment and get their consent to proceed.(370)

In order to gauge the extent of the potential will-maker’s functional incapacity, it is useful to interview a person, such as a family member or carer, who has had regular and recent contact with the potential will-maker. It is advisable that any such interviewee should not be present in the room during the examination of the potential will-maker.

The assessment should include a medical and psychiatric history, mental status and cognitive examination (with specific attention to frontal and executive functions) in order to exclude or make a diagnosis of mental disorder, as well addressing the specific tests for testamentary (will-making) capacity.(371) Ultimately, the clinical examination should be linked to the will-maker’s capacity to meet the specific elements of testamentary capacity.(372) The expert should, where possible, gain an understanding of the potential will-maker’s family relationships and the “emotional/psychological milieu” in which the will-maker lives with specific reference to conflicts or tensions within the family, of which the will-maker should be aware.(373) The expert should also gain an understanding of the will-maker’s rationale for the disposition of their property in the light of family relationships and patterns of trust established in the previous will-making pattern or the pattern of other documents such as any powers of attorney. If possible, the will-maker should be asked to reflect on the implications of their decision. They should appreciate the consequences and impact of a particular disposition, especially if it excludes natural or usual beneficiaries such as close family members. The expert should seek clarification of concerns regarding potential beneficiaries who are excluded from the will or bequeathed lower amounts than expected.(374)

Caution on this matter has been advised previously as people with frontal lobe deficits may be able to narrate in detail the consequences of an action without considering their significance.(375) This may be particularly relevant if a person with dementia has been influenced and coached in their decision and is able to “parrot” reasons for disposing of their assets in a way which favours certain individuals. Careful probing is especially important if there is a proposed departure from previous wills or consistently expressed wishes. Such probing is also prudent if the potential will-maker proposed to make multiple changes in their will as a means of controlling individuals necessary for their support or independence or if those who appear to be the proper objects of the person’s bounty are excluded.(376)

Shulman and others have provided a useful guide as to the questions that might be asked of the potential will-maker to assess their understanding of some of these issues. These are:

1. Can you tell me the reason(s) why you have decided to make changes in your will?
2. Why did you decide to divide the estate in this particular way?
3. Do you understand how individual A might feel, about being excluded from the will or about being given a significantly less amount than previously expected or promised?
4. Do you understand the economic implications for individual B of this particular distribution in your will?
5. Can you tell me about the important relationships in your family and others close to you?
6. Can you describe the nature of any family or personal disputes or tensions that may have influenced your distribution of assets? (377)

It is also helpful to ask the potential will-maker to repeat their intent with regards to disposition of their estate at the end of the consultation to check consistency. Some experts do assessments on two separate days to ensure this. It is important to document in detail the potential will-maker’s wishes. Some clinicians advocate tape or video assessments to ensure accuracy.

4.9.4.5 Assessment after the will-maker has died

After the will-maker has died, any expert commenting on capacity is at a relative disadvantage compared to those who have seen the will-maker during life. Notwithstanding that, there is often a wealth of documentation, usually more than was available during the will-maker’s life, upon which an expert may draw their conclusions, providing they are given all the available and relevant documents.

Despite the fact that some judges have downplayed the role of expert witnesses in court proceedings relating to will-making capacity, particularly the role of those expert witnesses who have never seen the will-maker, it is clear from more recent cases that the courts are accepting as evidence, and are giving careful consideration to, retrospective assessments of a will-maker’s capacity to make a will at the relevant time or times, the will-maker’s knowledge and approval of the contents of the challenged will or wills or about the undue influence of others on the will-maker.

It is important that retrospective assessments are based on all the relevant documents and that the assessor has and uses demonstrable expertise as well as “gold standard methodology” in reference to the appropriate legal tests for will-making capacity and the associated matters. It is noted that retrospective methodology in capacity assessment has been accepted as valid, and expert retrospective opinion considered admissible in overseas jurisdictions for more than 20 years. This has been ratified in scientific publications since and by an international taskforce on capacity.(378) See also 4.9.1, 4.9.4.7 and 4.9.6.

4.9.4.6 What to provide to the expert making a retrospective assessment

The expert dealing with a matter after the will-maker has died should be provided with the following:

1. Any medical notes relating to the will-maker made contemporaneously with the will, especially the records of the will-maker’s general practitioner, hostel, and nursing home or hospital progress reports, Aged Care Assessment Team notes;
2. Affidavits made by lay people relating to the will-maker’s relationships with their beneficiaries and any other relevant information from non-professional people which may point to a change in the will-maker’s personality or relationships, or show conflict coinciding with the will-maker’s dementing or other illnesses relevant to will-making capacity. Such lay people could include family members, friends and carers who had first-hand experience of the will-maker;
3. Evidence of previously established trust on the part of the will-maker e.g. previously appointed attorneys under powers of attorney or appointed enduring guardians;
4. All previous wills to establish the will-making pattern, or the lack of it;
5. Any file notes or affidavits from the solicitor who took instructions from the will-maker;
6. All documents provided to the experts acting for the other parties if litigation has been commenced.

4.9.4.7 Retrospective assessment

Notwithstanding any reservations by the courts about the value of the expert giving retrospective opinion, there is international consensual agreement amongst health care professionals acting as experts in this field that the methodology – much akin to the psychological autopsy process – is valid. As already noted at 4.9.4.5, there is often more documentation available to the expert making the retrospective assessment than was available to an expert making a contemporaneous assessment. This is partly because with retrospective assessments there is usually more time available to gather the relevant material.

Medical records may provide detail about relevant medical conditions such as history of stroke, risk factors for cerebrovascular disease or the results of any cognitive examination. Progress notes from residential care facilities are particularly helpful in that they often document patterns of behaviour relevant to decision making in detail on and around the day the will was made; for example, behaviours reflective of poor impulse control, planning or judgment.

Evidence from lay people will often demonstrate the nature of family relationships or previously expressed wishes and provide descriptions of behaviour. All these matters must be interpreted in terms of their relationship to the legal criteria for will-making capacity. Less helpful aspects of lay testimony include the frequently made but faulty assumption that the will-maker was competent because their social graces had been preserved.(379) Other aspects of this matter are discussed at 4.9.1 and 4.9.6.

4.9.5 Writing an expert report

4.9.5.1 The content of the report

Regardless of whether the assessment is contemporaneous or retrospective, in addition to addressing the specific criteria for will-making capacity, the expert witness should provide an account of the will-maker’s relationships and must obtain their medical history, the history of their cognitive decline and the results of any cognitive examinations of the will-maker. These issues must be addressed in the expert’s report, a suggested outline of which is set out in the box below.

Suggested outline of report for will-making capacity:

1. Expertise or CV annexure;
2. Questions asked;
3. Acknowledgement of having read the relevant expert code;
4. Evidence upon which opinion is based (i.e. a list of the documents provided);
5. Circumstances of assessment if contemporaneous (i.e. visited at home/surgery for how long/who was present);
6. Facts, matters and assumptions upon which opinion is based;
1. Personal history of the testator and family relationships;
2. General medical history;
3. History of cognitive decline or psychiatric history, if relevant;
7. Opinion
1. Diagnosis, including a rating of severity of cognitive impairment if possible;
2. Outline legal tests for will-making capacity & address each element separately:
   1. awareness and appreciation of the significance act of making a will;
   2. awareness, in general terms, of the nature and extent of the estate;
   3. awareness of those who might reasonably have been thought to have a claim on the person’s bounty;
   4. the ability to identify, evaluate and discriminate between the respective strengths of the claims of such persons using examination of the pattern of the previous wills; the terms of the will itself looking for inofficiousness (failure to provide for due objects of bounty); and evidence regarding the person’s appraisal of their beneficiaries.
   5. presence of disorder of mind such as delusions and hallucinations which have influenced the disposition
8. Conclusion (N.B. if the opinion is incomplete or not a concluded opinion, codes of conduct usually require a statement to that effect); and
9. References (codes of conduct usually require that any literature or other materials utilised in support of the opinions are outlined).

4.9.5.2 The criteria for will-making capacity and how to assess them

While the Banks v Goodfellow(380) criteria for defining will-making capacity remain the established law, a need to go beyond those criteria has been identified recently in the international literature. Our understanding of psychopathology and cognition, and our expectations of will-makers today compared with those in 19^th century England have evolved.(381) We have mentioned previously the social changes which have had impact on the criteria for knowledge of the nature and extent of assets.(382) The other significant change in contemporary will-making is that dementia by far exceeds schizophrenia in will challenges. Accordingly, testamentary decisions are often tainted by more than simply focal delusions, but rather impairments in judgment about beneficiaries, often changed coincident with dementia. Shulman, Cohen and Hull have commented:

Many cases of challenges to testamentary capacity involve complex and subtle issues that call for a need to go beyond the traditional Banks v Goodfellow criteria. Lawyers and expert assessors need to ensure that they take into account the capacity to appreciate the consequences of executing a will especially in suspicious circumstances where there has been a radical change to a will in the context of a complex or conflictual environment or where there is evidence of a significant medical/neurologic condition.(383)

Our understanding of psychopathology and cognition, and our expectations of will-makers today compared with those in 19^th century England have evolved. This has had most impact on the criteria for knowledge of the nature and extent of assets (the threshold for which has been lowered) and for recalling and understanding the claims of potential beneficiaries (the threshold for which has risen).

As noted earlier in Kerr v Badran, Windeyer J acknowledged the current day reality of understanding of assets which has in effect dropped the threshold for a will-maker to understanding the extent of their assets.(384) In contrast, the New South Wales Court of Appeal case, Read v Carmody, may have raised the threshold for the appraisal of the claims of beneficiaries.(385) That was a case in which there were many people who could qualify as the objects of the will-maker’s bounty. Few of them were included in his final will which was made only two days after his second last will. The matter was resolved by the trial judge finding, and the Court of Appeal upholding that finding, that the will-maker had will-making capacity when he made his final will.

In that case Powell JA restated the Banks v Goodfellow criteria.(386) His more complex description for the criteria for capacity has been modified into a set of questions for clinicians. These are as follows:(387)

1. Is it likely that any impairment was present which may have compromised the deceased’s capacity with respect to an awareness and appreciation of the significance of the act of making a will?
2. Is it likely that any impairment was present which may have compromised the deceased’s capacity with respect to awareness in general terms of the nature and extent of his estate?
3. Is it likely that any impairment was present which may have compromised the deceased’s capacity with respect to an awareness of those who might reasonably have been thought to have a claim on the deceased’s testamentary bounty?
4. Is it likely that any impairment was present which may have compromised the deceased’s capacity with respect to ability to identify, evaluate and discriminate between the respective strengths of the claims of such persons?
5. Is it likely that any disorder of mind such as delusions and hallucinations which would influence the deceased’s awareness of facts or reasoning and decision making ability specifically with regard to the above four capacities.

Internationally, a senior group of legal, judicial and medical professionals have proposed a model for adaption or modification of the Banks v Goodfellow(388) criteria, taking into account the modern context of will-making and will challenges. It has been proposed that to have testamentary capacity, a testator must be:

1. Capable of understanding the act of making a will & its effects;
2. Capable of understanding the nature and extent of their property relevant to the disposition;
3. Capable of evaluating the claims of those who might be expected to benefit from his estate, and able to demonstrate an appreciation of the nature of any significant conflict and or complexity in the context of the testator’s life situation;
4. Capable of communicating a clear, consistent rationale for the distribution of their property, especially if there has been a significant departure from previously expressed wishes or prior wills; and
5. Free of a mental disorder, including delusions, that influences the distribution of the estate.(389)

As with other capacities, the assessment of will-making capacity has task-specific elements as outlined by the specific criteria for defining capacity, and situation-specific elements depending on the individual circumstances of the case.(390) The job of the expert is to take both into consideration. While each of the criteria which define will-making capacity requires specific cognitive skills, the threshold of cognitive deficit which might preclude capacity will vary according to the complexity of the estate and the way it is disposed of in the will. The following paragraphs outline the skills specific to each of the criteria and their practical application to guide health care professionals in their assessment.

4.9.5.3 Awareness and appreciation of the significance of the act of making a will

This concept is stored in long term memory or what is considered “crystallized” or “old”. It is therefore unlikely that such "old" knowledge is lost until very late stages of a dementing illness.

4.9.5.4 Awareness of the nature and extent of the estate

Since Kerr v Badran(391), the standard for knowledge of estate has been lowered to “bear on existing circumstances in modern life” where older people living today may well be aware that they own substantial shareholdings or real estate but not have an accurate understanding of the value or addresses of those assets. Some ten years ago this approximation of assets was advocated by American experts in the field who suggested that a testator understand in a “general way” the extent of property and its form, for example, cash, bonds, real estate, and “not necessary exact dollar figure in mind as to net worth but in general way should know whether has substantial amount or very little”.(392)

Notwithstanding the lowering of the required legal standard, the requisite cognitive skills will depend on situation-specific factors about the nature of the estate. If the estate is simple and little has changed over the years, for example, ownership of the family home plus one longstanding real estate investment, the will-maker can rely on often-preserved crystallised, long term memory. Thus, knowledge of assets may be retained well into the course of established dementia. Difficulties arise when there have been recent changes in real estate or shareholdings, for example, sales or gifts of real estate to family members, during the course of dementia. Early deficits in short–term memory, seen particularly in Alzheimer’s disease, may cause recent significant changes in assets to be forgotten when the will-maker gives instructions as to how their estate is to be distributed under their will.

Additionally, the increasing complexity of estate planning today involving trusts, companies and self-managed superannuation funds(393) means that complex distributions where different assets are distributed to different beneficiaries, will require greater understanding than articulated in Kerr v Badran.(394)

Other functions which may be important to knowledge and distribution of estate include “calculia”, which is the ability to calculate and manipulate numbers, particularly if more than simple distribution of assets is involved. In Grynberg v Muller; Estate of Bilfeld, a wealthy testator was described by the solicitor who took instructions as “having difficulty with ‘how many zeros’ ” to be included in the gift to one of her beneficiaries. The solicitor also said he had to explain to explain to his client “what $150,000 was vis a vis zeros”.(395) In another case a will-maker made a complex fractional distribution of her estate and changed those fractions when she made new wills. Windeyer J regarded the change of fractions as significant and noted that “the changes between the 1990 and 1993 wills are quite difficult to comprehend” and criticized the solicitor for drafting the will in this way.(396)

Consistent with the approach outlined above in Kerr v Badran, and also consistent with contemporary human rights frameworks that promote supported decision making, the inability of a testator to spontaneously recall the nature or extent of his assets, should not be taken as evidence of lack of capacity, if these details can be provided to him or her at the time of giving instructions. For example, in a 2020 case in the Supreme Court of NSW, a will-maker with severe past brain injury who could not spontaneously recall his entire estate, was “taken through a list of all of the types of property he had” and Robb J found that it “was sufficient that he knew that he had a home, a car and a trust fund worth over $1,000,000” (397)

In a 2009 case in the Supreme Court of New South Wales, Ward J treated this element of the Banks v Goodfellow test as requiring that the will-maker to be able to call to mind the persons who may have claims on the estate and be able to weigh the relative claims of those persons.(398)

The issue of the objects of a will-maker’s bounty is also dealt with above at 4.2.

An approach to the assessment of this crucial aspect of capacity is based on the examination of the three following pieces of evidence:(399)

(a) The history of disposal or the will-making pattern. This is because previous wills may demonstrate an enduring and stable pattern of bequests and reflect views held by the will-maker prior to any significant deterioration in their mental state. This history may also reflect a person's “highest order preferences”.(400) When assessing this aspect of will-making capacity, the expert should reflect on the original Banks v Goodfellow concept: Is this a disposal which, if the mind had been sound, would not have been made? The importance of the link between disorder or mind and changes in will making pattern was recognised as early as 1924 in Bailey v Bailey, where it was noted that:

Suspicion as to incapacity is aroused when a will-maker revokes prior wills and executes entirely different dispositions during a period of mental enfeeblement.(401)