Handling a NSW testamentary capacity dispute
A challenge to testamentary capacity requires the propounder to prove the testator had capacity at the time the will was made. The classic Banks v Goodfellow test remains the applicable standard in NSW.
This is an 8-step workflow for handling a testamentary capacity dispute in NSW, including the Banks v Goodfellow test, caveats on grant, and probate in solemn form.
Before you start
- Copy of the will and any prior wills obtained
- Medical records and GP notes requested
- Instructions on the relationship history and suspicious circumstances
- Letters of administration or probate status confirmed
The workflow
Gather medical and file evidence
Gather all relevant medical records — GP, specialists, aged care, and hospital admissions — covering the period around execution of the will. Request the solicitor's file and file notes.
Apply the Banks v Goodfellow test
Apply the Banks v Goodfellow test — the testator must understand the nature of the act, the extent of their property, the claims on their bounty, and not be affected by disorder of the mind.
Identify suspicious circumstances
Identify any suspicious circumstances — recent isolation, a new beneficiary involved in execution, dramatic change from an earlier will, or cognitive decline shortly before.
Brief a medical expert
Brief a geriatrician or neuropsychiatrist to retrospectively assess capacity. Provide the medical records, will, and any contemporaneous evidence.
Lodge a caveat on grant
If a grant has not issued, lodge a caveat on grant with the NSW Supreme Court Probate Registry to ensure no common form grant issues before the dispute is resolved.
Commence solemn form proceedings
Commence or respond to probate in solemn form proceedings where the validity of the will will be determined on the evidence.
Prepare affidavit and expert evidence
Prepare affidavit evidence, the expert report, and lay witness evidence from people who interacted with the testator around the time of the will.
Run the trial or negotiate settlement
Attempt mediation early. If the matter does not resolve, run the trial with the propounder carrying the onus of proving capacity.
What you will have at the end
A court determination on the validity of the will, or a negotiated settlement. The losing party typically faces a costs order out of the estate or personally.
Common issues
- Missing the caveat on grant deadline
- Relying solely on the solicitor's file note without medical evidence
- Failing to identify and explain suspicious circumstances
- Not considering concurrent undue influence or knowledge and approval issues
- Overlooking the Probate and Administration Act 1898 standing rules
Run this workflow on a real matter
Quillio drafts affidavits, letters of instruction to experts, and maps the evidence to each limb of the Banks v Goodfellow test. See /practice-areas/wills-estates-lawyers or start a free trial.
This workflow is a general guide for NSW. Other jurisdictions have different probate procedural rules.
Try this workflow with Quillio.
Quillio can run this workflow on a real matter, with citations to current AU authority on every step. The free trial requires no credit card.
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