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Proving or Disproving Testamentary Capacity

Challenges to Will Testamentary Capacity – What You Need To Know


Challenges to Wills on the ground of a lack of testamentary capacity are becoming more common in Victoria.

What “red flags” 🚩may warrant a possible challenge to a Will on the ground of a lack of testamentary capacity?

  • The Will made is radically different from previous Wills and for the first time does not provide for beneficiaries included in the previous Wills;
  • The beneficiaries of the new Will, who may be in a position of influence over the Will maker, may have arranged for the making of the Will. It may even have been made without the assistance of a lawyer;
  • The Will maker may have been elderly, dependent on others and been in mental decline for a period prior to the making of the Will.

If one or more of these "red flags" 🚩🚩 are up, what then is the legal test of testamentary capacity or a lack of it?

  • Was the Will maker aware and able to appreciate the significance of making a Will and comprehend what it is;
  • Was the Will maker aware in general terms of the nature, extent and value his or her estate to which the person has a disposing power;
  • Was the Will maker aware of those who might be reasonably thought to have a claim upon his or her estate, the basis for it and the nature of the claims of such persons; and
  • Did the Will maker have the ability to evaluate and discriminate between the respective strengths of the claims of such persons.

When is testamentary capacity to be assessed?

Capacity is assessed at the time instructions are given to draw the Will (assuming a lawyer or someone is asked to draw it) and also at the time it is signed/witnessed.

Taking account of the testamentary capacity “test”, if one or more of the "red flags"🚩🚩 are still up what next step(s) should I take?

A caveat should be filed with the Registrar of Probates.

The caveat prevents the Will being probated (validated by the Court).

On the executor of the disputed Will filing a probate application, the caveator receives a notice from the Registrar of Probates requiring grounds of objection alleging lack of testamentary capacity to be filed within 30 days from receipt of the notice.

On filing the objections, the matter can then be put into Court with procedural orders made including production and exchange of relevant documents such as doctor and hospital records or the lawyer’s file of notes if the Will was drawn by a lawyer together with exchange of sworn evidence on affidavit.

The matter then comes before the Court as a contested probate application to determine the question – is the Will valid?

What evidence is needed to show the Will maker’s capacity or lack of it?

Sources of evidence are usually from:

  • The lawyer who drew the Will (if made before one).  Evidence of statements by the Will maker to the lawyer are admissible. The fact a lawyer drew the Will is not however sufficient to ensure a finding of validity. The lawyer must address the issue of capacity by asking the right sort of questions of the Will maker to ensure he or she meets “the test”.
  • Treating medical doctors. The doctors opinion whether the Will maker meets “the test” of capacity and setting out detailed reasons would likely carry weight.
  • Lay witnesses. Evidence of the Will maker’s observable behaviours up to, including and after the making of the Will from family and friends is important.  Behavioural matters which indicate cognitive function or otherwise include conversational ability, self-management/ personal care, long or short term memory loss, insight into their personal condition and the quality of their relationship with relatives and carers is all relevant.

Get Will Challenge advice now

Our Will Challenge lawyers can help you by:

  • Providing you advice on proving or disproving testamentary capacity;
  • Assist you to promptly assess your legal position;
  • Represent you in any testamentary capacity court proceeding.

We are Wills and Estate lawyers with substantial experience in Will challenge cases, proving or disproving testamentary capacity.

If you have or are involved in a Will testamentary capacity case and are unsure how best to resolve it, we can assist.

Please contact Andrew O’Bryan or Carl Wilson on 9200 2533 or send us an email.

We have offices at Melbourne, Dandenong and Pakenham.

How to Contact Us


Andrew O’Bryan
Galbally & O’Bryan 
259 William Street
T (03) 9200 2533 | M 0400 469 704



Carl Wilson
Galbally & O’Bryan 
259 William Street
T (03) 9200 2533 


Dandenong Office
Shop 9 / 147-151 Foster Street
T (03) 9769 2510


Pakenham Office
Shop 1, 15 John Street
T (03) 5941 7990 


The information on this website is of a general nature only and may not reflect recent changes to certain areas of law. It should not be relied upon as a substitute for discussing your situation with a qualified legal practitioner. Contact us for more information.