CAPACITY TO WRITE A VALID WILL

The validity of a WILL depends on the testator’s capacity to write a WILL, because even if the
WILL is validly written in compliance with section 9 of the WILL’s Act 1837 and the testator is
discovered not to have a testamentary capacity such WILL will be held invalid.
Section 3 of the WILL’s Act 1837 enables every person male or female to devise or bequeath his or
her property by WILL. This Section was later modified to consider three types of individuals as to
their testamentary capacity to make a valid WILL.
 Persons who have testamentary capacity (ANIMUS TESTANDI) to make a valid WILL.
 Persons who does not have testamentary capacity to make a valid WILL.
 Persons who have restricted capacity to make a valid WILL.

1. PERSONS WITH TESTAMENTARY CAPACITY

Testamentary Capacity is the legal term of act used to describe a person’s legal and mental ability to
make or alter a valid WILL. To have testamentary capacity, the author of the WILL must
understand the nature of making a WILL, have a general idea of what he/she possesses, and knows
who are members of the immediate family. Inherent in that capacity, is the ability to resist the
pressures or domination of any person who may try to use undue influence on the distribution of the
testator’s estate.

For almost a century and a half the test for mental capacity to make a valid WILL has been based
on the English case Banks v Goodfellow (1870). This case concerned the WILL of John Banks (the
testator i.e. the person making the WILL) who was diagnosed as suffering from paranoid
schizophrenia. Banks had a history of mental health problems and had spent some time in an
asylum. Even after discharge, he suffered delusions about being pursued by devils and being
persecuted by a (deceased) butcher. In his WILL he left his estate to his young niece Margaret.
Unfortunately, she died just two years later aged 20 (which was under the age of majority at the
time) without having made a WILL. Her estate was passed to her paternal half-brother who was
unrelated to Banks. The son of the testator’s half-brother contested the WILL arguing Banks did not
have testamentary capacity. However, the WILL was found to be valid. It was deemed “rational”,
being for the benefit of his only close relative. Although Banks suffered mental illness causing
delusions, these did not influence his decision regarding the beneficiary of his estate.

The four-part test in Banks for establishing the mental capacity to write a WILL means the testator
must:

 understand the nature of the WILL and its effect;

 have an idea of the extent of the property which they are distributing;
 be aware of the persons for whom the testator would usually be expected to provide (even
if choosing not to do so); and
 be free from any delusions of the mind that would cause him or her not to benefit those
people.
 Also an individual who has not attained the age of 18 does not have a testamentary capacity to
write a valid WILL. The Family Law Reform Act lowered the minimum age of testamentary from
21 to 18 from January 1st 1970. Though, an individual who is under the age of 18 but a member of
Armed force on active Military Service, Sailor or Marina at sea can still make a valid WILL.
Therefore a person who is of age i.e. above 18 years, of sound mind and memory can validly write a
WILL.

2. PERSONS WITHOUT TESTAMENTARY CAPACITY

A person is said not to have testamentary capacity, if the author of the WILL does not understand
the nature of making a WILL, have a general idea of what he/she possesses, and does not know who
are members of the immediate family.
The court’s judgment on Mr. Oliver’s WILL case:
In this case the Queensland Supreme Court considered the case of Mr Oliver’s WILL which had
been prepared by the Public Trustee of Queensland but challenged by Mr Oliver’s brother. Mr
Oliver had suffered from chronic schizophrenia all his adult life and had been confined to hospital
since he was 19 years of age until his death at 61. As a result, the Public Trustee had managed his
affairs since 1990. On Mr Oliver’s death, the Public Trustee applied for probate. Mr Oliver’s
brother, however, sought to have the WILL declared invalid because of the schizophrenia and also
sought to be appointed administrator of the estate under intestacy rules, there being no earlier
WILL.

Mr Oliver was unmarried, childless, with four siblings but left all of his estate to a sister. The Public
Trustee argued the WILL was “rational” and thus there was a prima facie presumption of validity.
However, the court accepted that the brother had presented evidence displacing that presumption
and the WILL was declared invalid. That said, the court appointed the Public Trustee as
administrator as they were concerned about the impartiality of Mr Oliver’s brother.

Contributing to the decision of invalidity, having failed the test in Banks, the following points are
noteworthy:

1. the solicitor’s note did not reveal why Mr Oliver wanted only to benefit the sister or even if
he was aware of the other siblings who might have a claim; and

2. although a doctor was asked to complete a medical form when the WILL was executed this
was not particularly helpful and there was no comment on the doctor’s previous experience
of Mr Oliver.

Consequently, the following persons cannot make a valid WILL:

a. Minors: Section 7 of the WILL Act provides that no WILL made by persons under the age
of 18 years shall be valid except they are soldiers or members of the Armed forces in active
service.
 b. Idiots: Persons who are mentally deficient from birth cannot make a valid WILL because
they lack testamentary capacity.

c. Lunatics: An insane person can make a valid WILL during a lucid interval in which they
recovered their reasoning capacity.

Two classes of lunatic must however, be considered.

i. Persons certified insane by a psychiatrist: If such a person leaves a WILL, such WILL
would be presumed invalid and any person who intend to obtain probates if such WILL
made have to prove that it was made during a Lucid interval. In other words, the burden
of proof rest upon the person seeking to establish the WILL.

ii. Persons who are insane but not yet certified: Any WILL left by such a person is
presumed to be valid. Anyone wishing to set it aside on the grounds of the testator’s
insanity, will have to prove such insanity to the satisfaction of the court. The insanity of
the testator at the time of the execution of the WILL shall render the WILL invalid for
want of ANIMUS TESTANDI (testamentary intention) on the part of the testator.

3. PERSONS WITH RESTRICTED TESTAMENTARY CAPACITY

Before 1870, any money made by a woman either through a wage, from investment, by gift, or
through inheritance automatically became the property of her husband once she was married.
Thus, the identity of the wife became legally absorbed into that of her husband, effectively
making them one person under the law. Once a woman became married she had no claim to her
property as her husband had full control and could do whatever suited him regarding the
property: “Thus, a woman, on marrying, relinquished her personal property—moveable property
such as money, stocks, furniture, and livestock--- to her husband’s ownership; by law he was
permitted to dispose of it at will at any time in the marriage and could even will it away at
death”. For example, any copyrighted material would have the copyright pass to the husband on
marriage. This would be analogous to copyright of the work done as part of the employment
being owned by the employer. Even in death a woman’s husband continued to have control over
her former property. Before the Act was passed women lost all ownership over their property
when they became married: “From the early thirteenth century until 1870, English Common law
held that most of the property that a wife had owned as a feme sole came under the control of the
husband at the time of the marriage”.
Married women had few legal rights and were by law not recognized as being a separate legal
being – a feme sole. In contrast, single and widowed women were considered in common law to
be femes sole, and they already had the right to own property in their own names. Once a woman
became married she still had the right to legally own her land or house but she no longer had
the rights to do anything with it such as rent out a house that she owned or sell her piece of land:
Thus, a wife retained legal ownership of her real property—immovable property such as housing
and land, but she could not manage or control it; she could not sell her real property, rent it, or
mortgage it without her husband’s consent”. She could not make contracts or incur debts without
his approval. Nor could she sue or be sued in a court of law. Only the extremely wealthy were
exempted from these laws: Under the rules of equity, a portion of a married woman's property
could be set aside in the form of a trust for her use or the use of her children. However, the legal
costs involved in establishing trusts made them unavailable to the vast majority of the
population. Women started to try to get the act passed in the 1850s, many years before it was
successfully passed: “In the 1850s a group of women had campaigned for the law to be amended
with no success. One important woman taking up the cause was Barbara Leigh Smith
Bodichon (1827-1891)”. She actively promoted women's rights and in 1854 published A Brief
Summary of the Laws in England concerning Women: together with a few observations
thereon. She worked hard to reform the married women's property laws. As an artist, she also
helped establish the Society for Female Artists in 1857. In 1865, she founded the women-only
Kensington Society for which she wrote Reasons for the Enfranchisement of Women in 1866.
She was also an intimate friend of George Eliot (Mary Ann Evans), who wrote Middlemarch.
In 1868, efforts to get the act passed were revived; in that year, a Married Women’s Property Bill
was introduced into parliament, which proposed that married women should have the same
property rights as unmarried women. A long and energetic campaign by different women's
groups and some men led to the passing of this Act.
The Married Women's Property Act of 1870 provided that wages and property which a wife
earned through her own work or inherited would be regarded as her separate property and, by
the Married Women's Property Act 1882, this principle was extended to all property, regardless
of its source or the time of its acquisition. The Act also protected a woman not only from
her husband gaining control of her property but also from people that worked for him,
his creditor: “These acts generally exempted married women’s property from attachments by
creditors of their husbands”.
This gave married women a separate statutory estate, and released them from coverture. It was
for the first time theoretically possible for married women to live away from their husbands and
support their own children themselves.

Principles To Be Applied When Assessing The Capacity To Make A Valid Will

1. Always presume a person has capacity
The most basic principle is to presume that a person has the capacity to make all decisions for
themselves.

2. Capacity is decision specific

Apply the presumption of capacity for every decision the person makes. This is because a person
may be able to make some, but not all, decisions for themselves.

3. Don't assume a person lacks capacity based on appearances

Do not assume a person lacks capacity because of their age, appearance, disability, behaviour or
any other condition or characteristic.
4. Assess a person's decision-making ability - not the decision they make
A person cannot be assessed as lacking capacity simply because they make a decision you think
is unwise, reckless or wrong.

5. Respect a person's privacy

Respect a person's right to privacy when you are assessing their capacity.

6. Substitute decision-making is a last resort

If all efforts made to support a person through the decision-making process fail, then you can
decide that the person doesn't have capacity to make that decision. It is only then that a substitute
decision-maker can make that decision for the person.

Relevant Questions Relating To The Capacity To Write A Valid Will

 Who does testamentary capacity assessment?
 What is the testamentary capacity required for a WILL?
 Who decides on capacity?
 When should the WILL be signed?
 Could the WILL be challenged?