Did you know that the aging rate in Australia is increasing, and increasing rapidly? In fact, over the past twenty years, the population aged 65 years and over has increased by over 4% and it is projected that by 2060, one in five people will be older than 65.

Why is this important?

The more a person ages, the more significantly their physical and mental capacity declines. This is especially important in the context of estate planning documents. A will made by any person who does not have sufficient testamentary capacity is invalid.

Have your parents, or your grandparents made a will recently? Perhaps, it could actually be yourself. Whilst it may appear to you that a person has capacity, the court is certainly not so lenient.

Furthermore, if you or any other person is at risk of lacking sufficient testamentary capacity, your wills can be exposed to various legal disputes, claims, and challenges; making a mess for your beneficiaries.

What Does the Court Deem as Insufficient Testamentary Capacity?

In the recent Queensland case of BSJ, effective mental capacity was affirmed to be if a person has understood the general nature and the effects of the gifts given to his beneficiaries.

Common ‘red flags’ that may signify a person is lacking this capacity can be classified into two categories;

  • Loss of Cognitive Function; and/or a
  • Lack of Emotional Stability.

To determine whether a person lacks sufficient testamentary mental capacity, you should ask yourself the following questions:

Loss in Cognitive Function Lack of Emotional Stability
Are they experiencing frequent memory loss? Are they emotionally distressed?


Are they having difficulty in articulating communication?


Are they emotionally labile?


Are they having difficulty in comprehension and maintaining focus?


Are they experiencing delusions?


Are they having difficulty in negotiating between simple choices? Are they experiencing hallucinations?


Are they generally disoriented, as to be unaware of the environment around them?

If you have affirmed any of the above indicators in a person who has recently made a will, this can be an alarming sign that they lack sufficient testamentary capacity and their will could be held invalid.

Still Feeling Doubt?

Lynn and Brown Lawyers encourage anyone who has questions regarding the validity of their will, or any doubt regarding the testamentary capacity of a will made by yourself or a family member to get in touch with one of our experienced family lawyers. You can contact us at www.lynnandbrown.com.au or by calling 9375 3411.


About the Authors: This article has been co-authored by Manav Patel and Steven Brown. Manav is in his final year studying a Bachelor of Commerce with a Major in Business Law and Finance. Manav will commence his Juris Doctor in 2023 at the University of Western Australia. Steven is a Perth lawyer and director and has over 20 years’ experience in legal practice and practices in commercial law, dispute resolution, and estate planning.


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