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, [1] 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. [2]

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.

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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. [1] 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. [2] 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. [3]

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. [4] 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.

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