Can I Challenge a Will in Queensland Due to Lack of Testamentary Capacity?

There is no question about it—everyone must make a Will to secure their legacy. However, it’s equally important that a person fully understands the nature and consequences of their decisions when creating one. What happens, though, if their mental capacity was impaired at the time?

In Queensland, proving a lack of testamentary capacity is not only a legal challenge but requires careful analysis, compelling evidence, and an in-depth understanding of estate law. With an ageing population and a rise in dementia and cognitive disorders, challenges to Wills on the grounds of mental incapacity are becoming increasingly common. According to the Australian Institute of Health and Welfare (AIHW), as of 2023, over 411,000 Australians are living with dementia. The numbers are expected to double by 2058.

If you’re concerned about the validity of a Will, this guide will help you navigate the legal framework, understand the process, and explore potential outcomes of contesting a Will based on a lack of testamentary capacity in Queensland.

What Is Testamentary Capacity?

Testamentary capacity is a person’s ability to understand and make a valid Will. In Queensland, the law presumes that a testator (person making the Will) has capacity unless proven otherwise. However, this presumption can be overturned if sufficient evidence shows a lack of understanding when they made their Will.

The legal test for capacity originates from the landmark English case Banks v Goodfellow (1870). This case remains the standard applied in Queensland courts, despite challenges in previous years. According to this test, a person must:

• Understand what a Will is, what assets they own, and who should reasonably expect to inherit;
• Comprehend the extent of their assets and property;
• Recognise the people who might reasonably expect to benefit from their estate; and
• Be free from delusions or mental disorders that might distort their decision-making.

A person suffering from dementia, Alzheimer’s, or another cognitive impairment may still have testamentary capacity if they meet the above criteria. However, if their condition affected their ability to make rational decisions about their estate, the Will could be open to challenge.

Why a Person Loses Testamentary Capacity

A person may lose testamentary capacity due to a variety of medical, psychological, and age-related conditions that impair their cognitive abilities. Some common causes include:

• Dementia and Alzheimer’s disease: Progressive cognitive decline can severely impact memory, judgment, and comprehension.
• Stroke and brain injuries: These can cause sudden impairments in reasoning, problem-solving, and communication.
• Mental health disorders: Conditions such as schizophrenia or severe depression can affect decision-making abilities.
• Neurodegenerative diseases: Conditions like Parkinson’s disease or multiple sclerosis can impact cognitive function over time.
• Delirium or infections: Temporary confusion due to infections, medications, or metabolic imbalances can cause transient cognitive issues.

Losing testamentary capacity does not always happen suddenly. It can be a gradual process, making it crucial for individuals to prepare or update their Wills while they are still in sound mental health. Legal professionals often advise obtaining medical assessments when drafting wills for individuals with known cognitive issues to prevent future disputes.

Warning Signs of a Lack of Testamentary Capacity

Concerns over testamentary capacity often arise when certain red flags appear, including:

• A diagnosis of dementia, Alzheimer’s, or another cognitive disorder.
• Sudden and significant changes to an existing Will.
• Signs of confusion or forgetfulness at the time of signing the Will.
• An inability to recall major assets or key family members.
• The influence of a new person in the testator’s life who benefits significantly from the Will.
• Delusions or paranoia affecting distribution decisions.

If any of these signs were present when the Will was made, it may be worth investigating whether the testator had the necessary mental capacity.

The Legal Process for Contesting a Will in Queensland

Filing a Caveat

If you suspect a lack of testamentary capacity, the first step is to file a caveat with the Supreme Court of Queensland. A caveat prevents the grant of probate (legal validation of the will) until the dispute is resolved. This is a crucial step to stop the estate from being distributed before legal proceedings are finalised.

Gathering Evidence

The burden of proof in these cases shifts depending on the circumstances:

• The person defending the Will (usually the executor) must prove it was properly executed.
• If the Will appears rational and free from irregularities, the presumption of capacity applies.
• The challenger must then provide evidence to rebut this presumption.
• If suspicious circumstances exist, the executor may need to prove the testator had capacity.

Key evidence may include:

• Medical records showing cognitive decline or impairment.
• Statements from doctors who treated the testator around the time the will was made.
• Witness testimony from those who observed the testator’s mental state.
• Solicitor’s notes about any concerns regarding capacity.
• Previous wills to demonstrate unexplained changes.

Court Proceedings and Outcomes

If a challenge proceeds to court, a judge will assess the evidence and determine whether the testator lacked capacity when making the Will. Possible outcomes include:

• The Will is declared invalid. If a previous valid Will exists, it may take effect instead.
• Intestacy rules apply. If no prior valid Will is found, Queensland’s intestacy laws will determine how the estate is distributed.
• The court upholds the Will. If the court finds that testamentary capacity was present, the Will remains valid.

Notable Queensland Cases

Examining past cases helps illustrate how Queensland courts handle these disputes.

Case 1: Greer v Greer [2021] QCA 143

What Happened

• Kevin Greer made a Will in 2001 leaving everything to his son Stuart
• In 2017, while in respite care with health issues, Kevin made a new Will that:

• • Cut out Stuart completely
  • Split everything between his three other children

• Stuart challenged the 2017 Will, claiming his father lacked mental capacity

Court Decision

• The court ruled the 2017 Will was invalid due to Kevin’s lack of mental capacity
• This decision was upheld on appeal

Key Evidence

• Medical tests showed Kevin scored poorly on cognitive assessments
• Brain scans revealed dementia-related changes
• Kevin often couldn’t remember basic information like:

• • Names of his children
  • Where he lived
  • What year it was

• Expert testimony confirmed Kevin’s cognitive problems likely prevented him from understanding the effect of his new Will

Practical Lessons

• The person wanting to rely on a will must prove the testator had capacity
• Medical evidence is very persuasive in capacity cases
• Major changes to longstanding will arrangements raise red flags
• Having dementia doesn’t automatically mean someone lacks capacity, but it’s a significant factor
• Get proper capacity assessments at the time of making a Will when cognitive issues exist

Case 2: Frizzo & Anor v Frizzo & Ors [2011] QSC 107

Key Facts

• Mrs Frizzo, hospitalised with a broken hip, dictated a Will to her anaesthetist before surgery on January 28, 2006.
• This “2006 Will” divided her estate equally among her five children, replacing a 2003 Will that favoured her youngest son.
• The original 2006 Will was lost in the hospital; only a photocopy remained.

Court’s Decision

• Testamentary Capacity: Mrs Frizzo had capacity despite mild cognitive impairment and her hospital stay

• • She understood she was making a Will
  • She knew her assets and potential beneficiaries
  • She could evaluate competing claims

• Lost Will: The photocopy was admitted to probate

• • Evidence showed a valid Will existed and was properly executed
  • The Will was likely lost in the hospital, not intentionally destroyed
• Revocation: The 2006 Will completely revoked the 2003 Will
  • Her intention to “change” her Will was clear
  • The equal distribution was inconsistent with specific gifts in the 2003 Will

Key Takeaways

• Testamentary capacity is judged relative to the Will’s complexity
• Observations of those present when a Will is made carry significant weight
• Deathbed Wills can be valid with proper evidence of capacity
• Simple Wills are easier to defend against capacity challenges
• Proper documentation of copies can salvage a lost original Will

Preventing Future Will Disputes

We recommend several strategies to prevent challenges based on testamentary capacity:

• Obtain a medical assessment of capacity before drafting the will.
• Have the Will prepared by an experienced Estate Planning Lawyer, such as ours at ROC Legal who can document capacity.
• Record clear reasons for significant changes to beneficiaries.
• Consider video recording the Will-signing process as additional evidence.
• Update the Will regularly and discuss changes with family members to reduce the risk of disputes.

Navigating the Complex Path Forward

Contesting a Will due to a lack of testamentary capacity represents one of the most nuanced areas of Queensland estate law. The process balances respect for testamentary freedom with protection for vulnerable individuals whose cognitive impairments might have compromised their decision-making.

As the Australian population ages and cognitive impairments become increasingly common, understanding these challenges grows more important. With proper legal guidance, families can navigate these difficult waters while preserving dignity and ensuring just outcomes.

Trusted Will Dispute Lawyers Ready to Help

If you believe a loved one lacked testamentary capacity when making their Will, it’s essential to seek legal advice as soon as possible. Our experienced Will Dispute Lawyers Brisbane and Will Dispute Lawyers Gold Coast can guide you through the process, assess the validity of the Will, and help you gather the necessary evidence to support your claim.

At ROC Legal, we understand that contesting a Will is not just a legal battle—it’s often a deeply personal and emotional process. Our team provides compassionate, expert legal support to ensure that justice is served and the true intentions of your loved ones are respected. Contact us today for expert advice.