18/08/2025
Testamentary capacity is commonly a topic of contention in estate disputes. Determining whether a testator had testamentary capacity at the time they made their Will is not always straightforward. Having your Will prepared by a reputable estate planning solicitor is a vital step in ensuring testamentary capacity has been considered.
Testamentary capacity refers to a testator’s ability to make a Will. It does not mean that a testator must be completely free from conditions which may impact their cognitive capacity. They must, however, have the ability to understand the significance of making a Will, what is in their estate, and the effect of their Will as determined in Banks v Goodfellow (1870) LR 5 QB 549.
Diagnosed conditions such as age, dementia, intellectual disability and mental illness do not always indicate a testator does not possess testamentary capacity, however lawyers will often seek a report from the testator’s treating doctor to establish testamentary capacity where one of these factors may apply. A geriatrician’s report may also be required in the case of elderly testators. A court can also make orders to authorise individuals without testamentary capacity to make or alter a Will in special circumstances.
Two separate appeal cases recently heard in the New South Wales Supreme Court demonstrate the differences in behaviour that indicate whether a testator has testamentary capacity.
Peacock v Knox
The case of Peacock v Knox [2025] NSWCA 160 was heard on appeal in the New South Wales Supreme Court this year. In this case the appellant, Isabelle Peacock was a friend of the deceased and was the sole beneficiary of the deceased’s estate pursuant to her will made in 2019. The background of this case is as follows:
- In 2020 the deceased executed a new Will, which excluded the appellant from receiving any benefit.
- The deceased had prepared a new Will due to the breakdown of the relationship between the appellant and the deceased.
- The relationship broke down because the appellant was unable to continue visiting the deceased at her care facility during the Covid-19 pandemic because she refused to get vaccinated.
- The appellant sought to have the decision that the deceased had testamentary capacity at the time the 2020 Will was made overturned, and for probate to be granted for the 2019 Will.
The fact that the deceased was suffering from cognitive impairment due to vascular dementia in 2020 was not disputed. Evidence from the deceased’s treating doctor and a staff member at the care facility was presented which indicated the deceased did have testamentary capacity, and regularly said she did not want the appellant to get anything out of her estate because she was angry with her.
The appeal was dismissed by the Court, noting that it was appropriate to place weight on the evidence from the treating doctor and staff member and that the test from Banks was appropriately applied. The Court also agreed with the primary judge’s determination that if the Court found the deceased did not have testamentary capacity to prepare the 2020 Will, then she may also not have had capacity to make the 2019 Will either.
Chalik v Chalik
Conversely, in the case of Chalik v Chalik [2025] NSWCA 136 the appellant challenged a decision made by the primary judge and sought a grant of probate for the deceased’s most recent Will, executed in 2013. The facts are as follows:
- The appellant was one of the deceased’s two sons.
- The 2013 Will granted the entire estate to the appellant and made him the sole executor.
- The previous Will, made in 1998, distributed the estate evenly between the appellant and the deceased’s other son.
The primary judge found that the deceased did not have testamentary capacity at the time the 2013 Will was made because the deceased:
- did not know or approve the contents of the Will;
- did not know why she was at the solicitor’s office when the Will was made;
- was subject to undue influence by the appellant; and
- there was substantial evidence to support she was experiencing significant cognitive impairment.
The solicitor who prepared the Will also had no file notes to support his claim that he thought the deceased possessed the necessary testamentary capacity and admitted to failing to ask the deceased about the value of her estate.
The appeal was dismissed, and cross appeal was allowed in relation to costs.
These cases highlight the importance of ensuring your Will is prepared by a thorough and experienced estate planning solicitor to avoid future litigation.
Contact our team at Griffin Legal for expert guidance on your estate planning.