Contesting wills on the grounds the will maker lacked testamentary capacity


It is not uncommon today for a person to make numerous wills during their lifetime as their personal and family circumstances change.  On each occasion a new will is made the earlier will is revoked.  However, a new will may be made in circumstances where the will-maker is suffering from some form of mental incapacity (eg dementia) and is therefore not of sound mind to make a will.

In circumstances where the will-maker is not of sound mind he or she lacks testamentary capacity.  Testamentary capacity requires that the will-maker:

  • understand the legal effect of making a will,
  • understand the extent of the assets that comprise their estate;
  • is able to identify the persons who have a reasonable claim on the will-maker’s estate and be able to decide which of those persons the will-maker wishes to benefit from his or her estate; and
  • not be afflicted by any disorder of the mind that would affect their capacity to undertake a rational assessment of the matters in 1, 2 and 3 above.

If a court finds that a will is made in circumstances where the person is not of sound mind that will is invalid and an earlier will of that person may take effect.

Family provision claims – acting for a claimant or executor

Family provision claims are made against an Estate by a person who believes that they have not been adequately provided for in the will of a deceased. Broadly, the persons who can make such claims are a limited class of persons who have the following relationship with the deceased:

  • spouse or ex spouse (includes defacto);
  • children (including adopted);
  • persons who whom the deceased was in an interdependent relationship.

Time for making a family provision claim

Claims must be brought within 12 months of the date of death of the deceased subject to the court’s discretion to allow claims outside of 12 months if there are extenuating circumstances.


In family provision matters the parties are required to attend mediation before the matter proceeds to court for a hearing. Mediation may take the form of a settlement conference for estates with a gross value of $200,000 or less, court mediation in most cases and private mediation in relation to more substantial estates.


Costs are a topical issue in family provision matters. In general, a person who makes a family provision claim will be paid their reasonable costs out of the Estate. This, however, may be subject to the law regarding offers of settlement made during the course of a litigation matter and the exercise of the court’s discretion including its discretion to cap costs.

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