The answer is: it depends.
A person can have dementia, cognitive impairment, hallucinations or delusions and still have the capacity to make a valid Will. The key question is whether the person had testamentary capacity when they made their Will.
In simple terms: Dementia does not automatically invalidate a Will. The person’s condition must be considered in the context of their ability to understand what they were doing and make decisions about their estate.
Testamentary capacity and dementia
Testamentary capacity is the legal capacity a person needs to make a valid Will. A person must understand:
- that they are making a Will and what it means;
- the property they are distributing; and
- the people whose claims they should consider.
Croft v Sanders [2019] NSWCA 303 provides a useful example of how these issues can arise.
The case at a glance
| Issue | Details |
|---|---|
| Mr Croft | He was 85 when he died in 2016. |
| His Will | He made the Will in 2013. |
| Medical evidence | He had mild cognitive impairment. |
| Other issues | He experienced hallucinations and delusions. |
| Court’s finding | The NSW Court of Appeal upheld the finding that he retained testamentary capacity. |
Although Croft v Sanders was a NSW case, it provides a useful example of how a court may assess testamentary capacity where a person has cognitive impairment, hallucinations or delusions.
What is testamentary capacity?
Testamentary capacity is the legal capacity a person needs to make a valid Will.
The leading authority on testamentary capacity is Banks v Goodfellow (1870). The test requires a person making a Will to understand:
- What they are doing: that they are making a Will and its effect.
- What they own: the property they are disposing of through the Will.
- Who they should consider: the people whose claims they should take into account when distributing their estate.
- Whether their judgment is affected: a disorder of the mind or delusion must not influence the Will in a way that would not have occurred if their mind were sound.
This means a medical diagnosis does not, by itself, determine whether someone has testamentary capacity.
The important question is whether the person’s condition affected their ability to understand and make decisions about their estate at the relevant time.
What happened in Croft v Sanders?
In Croft v Sanders [2019] NSWCA 303, the NSW Court of Appeal considered whether Mr Croft had testamentary capacity when he made his 2013 Will.
His Will significantly favoured one of his six children over the other five.
| Child | Amount received |
|---|---|
| Five children | $40,000 each |
| One child | Approximately $3 million |
Mr Croft had experienced hallucinations and delusions. Medical evidence also suggested that he had mild cognitive impairment around the time he made his Will.
The challenge focused on whether these issues affected his ability to understand and appreciate the claims his children had on his estate.
Why was Mr Croft’s Will challenged?
Mr Croft’s 2013 Will distributed his estate very differently from his earlier Will. The significant difference in the gifts to his children became an important part of the dispute.
| Beneficiary | 2013 Will |
|---|---|
| Five children | $40,000 each |
| One child | Approximately $3 million |
The challengers argued that Mr Croft did not have testamentary capacity when he made the 2013 Will.
If the 2013 Will had been found invalid for lack of testamentary capacity, his earlier Will would have governed the distribution of his estate. That Will distributed his estate more evenly between his children.
What does the Banks v Goodfellow test require?
Banks v Goodfellow (1870) remains the leading authority on testamentary capacity. The test focuses on whether a person understood what they were doing when they made their Will and could make decisions about their estate.
In general, a person making a Will must understand:
| Requirement | What it means |
|---|---|
| The nature and effect of the Will | They understand that they are making a Will and what it means. |
| Their property | They understand the property and assets they are disposing of. |
| The people they should consider | They can understand and appreciate the claims of people who may have a legitimate interest in their estate. |
| The effect of any disorder or delusion | Their decisions are not affected by a disorder of the mind or delusion in a way that prevents them from making rational testamentary decisions. |
The original test in Banks v Goodfellow explains that a person’s mind must not be affected by a disorder or delusion that influences the way they dispose of their property.
Importantly, the test does not require a person to make a Will that their family considers fair.
A person can make decisions that others dislike or disagree with and still have testamentary capacity. The key question is whether they understood what they were doing and whether a disorder of the mind affected their decisions.
Did Mr Croft have testamentary capacity?
Yes. The NSW Court of Appeal found that Mr Croft retained testamentary capacity.
The Court considered the medical evidence alongside evidence about Mr Croft’s behaviour, conversations and circumstances.
What did the evidence show?
- Cognitive impairment: Medical evidence showed that Mr Croft had mild underlying cognitive impairment. However, this did not deprive him of testamentary capacity.
- Hallucinations and delusions: The evidence suggested that these beliefs were episodic rather than continuous.
- Effect on his Will: The evidence did not establish that his hallucinations or delusions affected the decisions he made in his Will.
The Court also considered that, if Mr Croft had been experiencing the relevant beliefs when he gave instructions for his Will, he would probably have expressed them when discussing the provision he intended to make for his children.
Ultimately, the Court found that Mr Croft’s cognitive impairment, hallucinations and delusions did not prevent him from having testamentary capacity.
Can someone with dementia make a valid Will?
Yes. Dementia does not automatically mean that a person lacks testamentary capacity.
A person with dementia or cognitive impairment may still have the capacity to make a valid Will if they understand what they are doing and can make decisions about their estate.
The key question is: Did the person’s condition affect their ability to understand and make decisions about their Will at the time it was made?
Every case depends on its facts and the evidence available about the person’s capacity.
If you are concerned about making or updating a Will because of concerns about capacity, our Wills & Estate Planning team can advise you about your circumstances.
Can hallucinations or delusions affect testamentary capacity?
They can, but their existence does not automatically invalidate a Will.
The key issue is whether the hallucination or delusion affected the person’s decisions about their estate.
In Mr Croft’s case, the Court found that his hallucinatory and delusional beliefs were episodic. The evidence did not establish that these beliefs affected his testamentary decisions.
This was an important part of the Court’s reasoning in finding that Mr Croft retained testamentary capacity.
What evidence is considered?
Croft v Sanders demonstrates the importance of considering all the available evidence rather than relying on a diagnosis alone.
Depending on the circumstances, relevant evidence may include:
- medical records and medical opinions;
- evidence from the solicitor who prepared the Will;
- evidence from family members, friends or carers;
- earlier Wills and changes between Wills;
- evidence about the person’s assets and family relationships; and
- evidence about the person’s behaviour and understanding around the time they made the Will.
Medical evidence can play an important role. However, the Court considers the evidence as a whole and applies the relevant legal test.
Does an unfair Will mean someone lacked testamentary capacity?
No. An unequal or unexpected Will does not, by itself, prove a lack of testamentary capacity.
A person may decide to leave more of their estate to one child than another. They may also choose to leave assets to people outside their immediate family.
The fact that family members consider the outcome unfair does not, on its own, establish that the person lacked capacity.
In Croft v Sanders, the significant difference between the amounts received by Mr Croft’s children did not, by itself, establish that he lacked testamentary capacity.
Can a Will be challenged for lack of testamentary capacity?
A Will may be challenged where there is a genuine question about whether the person had testamentary capacity when they made it.
However, lack of testamentary capacity is only one issue that may arise in a Will dispute. Depending on the circumstances, other issues can include undue influence, questions about execution and claims for further provision from an estate.
If you are concerned that someone lacked testamentary capacity when they made a Will, our Will Disputes lawyers can advise you about your circumstances and options.
What happens if someone does not have testamentary capacity?
If a person lacks testamentary capacity, they may not be able to make or change their Will themselves.
In Queensland, the Succession Act 1981 (Qld) provides a process for the court to authorise a Will to be made, altered or revoked on behalf of a person who lacks testamentary capacity, subject to specific requirements.
Under section 21, the court must be satisfied about matters including the person’s lack of testamentary capacity, the appropriateness of the applicant and whether the proposed Will may be one the person would have made if they had testamentary capacity. Read section 21 of the Succession Act 1981 (Qld).
This is different from assuming that a person with dementia cannot make a Will. Capacity depends on the person’s circumstances and the evidence available.
What does Croft v Sanders mean for testamentary capacity?
Croft v Sanders [2019] NSWCA 303 provides a useful example of why testamentary capacity must be assessed carefully.
Mr Croft had mild cognitive impairment and experienced hallucinations and delusions. Despite these issues, the NSW Court of Appeal found that he retained testamentary capacity.
The Court reached that conclusion after considering the medical evidence alongside other evidence about Mr Croft and the circumstances surrounding his Will.
Key takeaway: Dementia, cognitive impairment, hallucinations or delusions do not automatically prevent a person from making a valid Will. The key question is whether the person’s condition affected their ability to understand and make decisions about their Will at the relevant time.
Frequently asked questions
Does dementia automatically invalidate a Will?
No. A person with dementia or cognitive impairment may still have testamentary capacity. The key issue is whether their condition affected their ability to understand and make decisions about their Will at the relevant time.
Can a person with hallucinations make a valid Will?
Yes, potentially. Hallucinations or delusions do not automatically invalidate a Will. The important question is whether they affected the person’s testamentary decisions.
Does an unequal Will prove a lack of testamentary capacity?
No. An unequal or unexpected Will does not, by itself, prove that the person lacked testamentary capacity. The Court must consider the person’s understanding and the circumstances surrounding the Will.
Can I challenge a Will because someone lacked testamentary capacity?
You may be able to challenge a Will if there is evidence that the person lacked testamentary capacity when they made it. The circumstances and available evidence will determine whether a challenge may be appropriate.
Get advice about testamentary capacity and Will disputes
If you are concerned about whether someone had testamentary capacity when they made a Will, or you are considering challenging a Will, legal advice can help you understand your options.
Wakerley Legal’s Will Disputes team can advise on disputes involving testamentary capacity and the validity of Wills. Our Wills & Estate Planning team can also assist with making or updating a Will.