A person who makes a Will must have testamentary capacity. This means they must understand the nature and effect of making a Will. They must also understand what they own and the people who may have a claim on their estate.
Testamentary capacity plays an important role in determining whether a Will is valid. If a person lacked testamentary capacity when they made their Will, the validity of that Will may be challenged.
However, testamentary capacity is not the only issue that can arise. A person must also know and approve the contents of their Will. These are separate legal concepts. A person may have testamentary capacity but still fail to understand or approve the contents of the particular Will they signed.
If you are concerned about the validity of a Will, our Will disputes service provides further information about challenging a Will in Queensland.
What is testamentary capacity?
Testamentary capacity refers to a person’s ability to understand the nature and effect of making a Will. It also involves understanding the property they are disposing of and appreciating the people who may have a claim on their estate.
If a person lacked testamentary capacity when they made a Will, the Will may be invalid.
In Queensland, the Succession Act 1981 is the principal legislation governing Wills and succession.
The Act also gives the Supreme Court of Queensland power to authorise a Will to be made, altered or revoked for a person who lacks testamentary capacity. This applies in specific circumstances and while the person is alive.
What does “know and approve” mean?
In addition to having testamentary capacity, a person must know and approve the contents of their Will.
Knowledge and approval differs from testamentary capacity. A person may have the capacity to make a Will but still fail to understand or approve the particular document they signed.
When a person with testamentary capacity properly executes a Will, the circumstances may support an inference that they knew and approved its contents. However, suspicious circumstances may require the Court to examine the evidence more closely.
Queensland case law recognises testamentary capacity and knowledge and approval as distinct concepts. In Duncan v Gibson [2020] QSC 204, the Supreme Court of Queensland considered both issues in a challenge to the validity of a Will.
What are suspicious circumstances?
Suspicious circumstances do not, by themselves, provide a separate ground for invalidating a Will. Instead, they may create a well-founded reason to question whether the Will reflects the person’s true intentions.
They may also affect the usual approach to proving that the Will maker knew and approved its contents.
Relevant circumstances may include the sophistication of the Will maker, the complexity of the Will and the exclusion of family members. The Will maker’s opportunity to review the draft and obtain legal advice may also matter.
The circumstances surrounding the preparation and execution of the Will can become particularly important when the document is complex or differs significantly from an earlier Will.
Queensland courts have considered suspicious circumstances alongside issues such as testamentary capacity and knowledge and approval when determining whether a Will should be admitted to probate.
Why does the complexity of a Will matter?
A person with testamentary capacity may understand and approve a simple two-page Will. For example, their estate may consist of a bank account and a car.
However, the same person may struggle to understand a 30-page testamentary trust Will. This may be particularly relevant if they prepared the Will online without an explanation of its terms.
Their estate may also include numerous investments, cryptocurrency and assets in multiple jurisdictions.
This does not mean that a complex Will is automatically invalid. Nor must a person understand every technical legal expression used in a Will.
The key issue is whether the person understood and approved the substance and effect of the Will in the circumstances.
| Issue | What it concerns |
|---|---|
| Testamentary capacity | Whether the person had the mental capacity to understand the nature and effect of making a Will, their property and the people who may have a claim on their estate. |
| Knowledge and approval | Whether the person knew and approved the contents of the particular Will they made. |
| Suspicious circumstances | Whether circumstances surrounding the preparation or execution of the Will create a sufficient reason to question whether the person knew and approved its contents. |
What factors may be relevant?
When questions arise about whether a person knew and approved their Will, relevant circumstances may include:
- the sophistication and understanding of the Will maker;
- the complexity of the Will;
- the complexity and nature of the estate;
- the exclusion of family members or other people who might naturally be expected to benefit;
- whether the Will maker had an opportunity to consider the draft Will;
- whether the Will maker received appropriate advice about the document; and
- the circumstances in which the Will was prepared and executed.
These factors do not automatically determine whether a Will is valid. The Court must consider the circumstances of each Will and Will maker.
Can a Will be challenged for lack of knowledge and approval?
Yes. Lack of knowledge and approval differs from lack of testamentary capacity. It can provide another basis for challenging a Will.
For example, a person may have sufficient capacity to make a Will but may not understand the practical effect of a complicated testamentary trust or a particular provision.
Depending on the circumstances and available evidence, this may raise a question about whether the person knew and approved the contents of the document.
In Queensland, the Supreme Court has considered whether a testator knew and approved the contents of a Will separately from whether the testator had testamentary capacity.
Testamentary capacity and knowledge and approval are different
It is important not to confuse lack of testamentary capacity with lack of knowledge and approval.
A person may have testamentary capacity but still fail to know and approve the contents of their Will.
Conversely, concerns about a person’s mental capacity may raise a separate question about whether they could make a valid Will at all.
Both issues can arise in a Will dispute. However, they involve different legal questions.
Why legal advice can help
Questions about testamentary capacity and knowledge and approval can become particularly important when a Will is complex or a person’s circumstances have changed.
They can also matter when concerns arise about how someone prepared or executed the Will.
If you have concerns about the validity of a Will, you should consider the available evidence and circumstances carefully. This may include medical evidence, earlier Wills, solicitor file notes, correspondence and evidence from people who knew the Will maker.
Queensland cases show that courts may examine the evidence surrounding the preparation and execution of a Will when questions arise about testamentary capacity, knowledge and approval or other aspects of validity.
If you are considering preparing or updating a Will, you can also learn more about Wills and estate planning and the importance of making sure your Will reflects your current circumstances and intentions.
How a lawyer can help
Legal advice can help you understand whether concerns about testamentary capacity, knowledge and approval or suspicious circumstances may affect the validity of a Will.
A lawyer can also assess the available evidence and explain your options. This may include advice about challenging a Will or determining whether a proposed Will properly reflects a person’s intentions.
If you believe a Will may be invalid, obtaining advice early can also help preserve relevant evidence and identify the appropriate court process.
Our team can provide advice about Will disputes and help you understand the options available in your circumstances.
Frequently asked questions
What is testamentary capacity?
Testamentary capacity is the legal capacity required to make a valid Will. It involves understanding the nature and effect of making a Will, understanding the property being dealt with and appreciating the people who may have a claim on the estate.
Can someone with testamentary capacity still have their Will challenged?
Yes. Testamentary capacity is only one issue that may affect the validity of a Will. Someone may also challenge a Will if the person who made it did not know and approve its contents, depending on the circumstances and evidence.
What does knowledge and approval of a Will mean?
Knowledge and approval means that the person who made the Will understood and approved the contents of the document. This concept differs from testamentary capacity.
What are suspicious circumstances in relation to a Will?
Suspicious circumstances are circumstances surrounding the preparation or execution of a Will that create a well-founded reason to question whether the Will reflects the person’s true intentions.
They may affect the way the Court considers whether the Will maker knew and approved the contents of the Will.
Does a complicated Will mean that the person lacked testamentary capacity?
No. A complicated Will does not automatically mean that the person lacked testamentary capacity.
However, the complexity of the Will and the person’s ability to understand its substance and effect may matter when considering whether they knew and approved its contents.
Can a Will be challenged if the person did not understand what they were signing?
Potentially. The circumstances may indicate that the person did not know and approve the contents of the Will. They may also indicate that the person lacked the required testamentary capacity.
The specific circumstances and available evidence will matter.
What should I do if I am concerned about the validity of a Will?
If you believe a Will may not reflect the deceased person’s true intentions, obtain legal advice promptly. This also applies if you have concerns about their testamentary capacity or knowledge and approval.
The Queensland Succession Act 1981 contains the legislation governing Wills and succession in Queensland.
Contact us to discuss your concerns about a Will or estate dispute.