By Darryl Browne -
Snapshot
- To be valid, a will must be made by a free and capable testator.
- This article, the first in a two-part series, considers that requirement by reference to testamentary capacity, including the presumption arising from formal validity and rationality.
- It also highlights the critical role of solicitors in assessing capacity and recording will-making instructions.
The essential validity of a will turns on whether it represents the last will of a free and capable testator. That issue is conventionally analysed by reference to four subsidiary issues, including testamentary capacity. Recent decisions illustrate how courts approach the inquiry and the role played by those involved in the will‑making process.
What does free and capable testator mean?
In Re Estate of Ahmed Abou-Khalid [2024] NSWSC 253 (Lindsay J), the Court stated:
‘The ultimate question for the Court in assessment of the [essential] validity of a will is whether it represents the last will of the deceased as a free and capable testator. That question is conventionally (and logically) analysed by reference to four main, subsidiary questions. First, whether at the time the will was made the testator had “testamentary capacity”; secondly, whether the will was made with the testator’s “knowledge and approval” of its contents (that is, intentionally and knowingly); thirdly, whether the testator’s execution of the will was obtained by an exercise of “undue influence” (generally meaning “coercion”) on the part of an identified individual or individuals; and, fourthly, whether the testator’s execution of the will was obtained by the “fraud” of an identified individual or individuals’ (at [187]).
Each of these four main, subsidiary issues: testamentary capacity, knowledge and approval, testamentary undue influence, and testamentary fraud are distinct. Each has been considered in one or more significant recent decisions. These are discussed in this article.
