Where is my mind? The rise of con­tentious pro­bate pro­ceed­ings sur­round­ing the issue of tes­ta­men­tary capacity

In New South Wales, fam­i­ly pro­vi­sion and con­tentious pro­bate claims under the Suc­ces­sion Act 2006 (NSW) are increas­ing­ly focused on whether a will was made with valid tes­ta­men­tary capac­i­ty. With an age­ing pop­u­la­tion and ris­ing dis­putes, courts con­tin­ue to apply the long­stand­ing Banks v Good­fel­low test to deter­mine the valid­i­ty of wills chal­lenged on capac­i­ty grounds.

In New South Wales, a fam­i­ly pro­vi­sion claim is a statu­to­ry chal­lenge brought against an estate under the Suc­ces­sion Act 2006 (NSW) (Act) by an eli­gi­ble per­son. This can be a sur­viv­ing or for­mer spouse (either by mar­riage or de fac­to rela­tion­ship), a child, a grand­child, a mem­ber of the same house­hold, a per­son who was whol­ly or par­tial­ly depen­dent, or a per­son that had a close and per­son­al rela­tion­ship with the deceased per­son as stat­ed under sec­tion 57 of the Act.

Our grow­ing aged pop­u­la­tion means that we have seen a rise in the preva­lence of cog­ni­tive impair­ment in old­er tes­ta­tors and increased sus­pi­cions that their wills or tes­ta­men­tary doc­u­ments have been exe­cut­ed with­out tes­ta­men­tary capacity.

With this comes a grow­ing trend of con­tentious pro­bate claims. This can also be attrib­uted to increas­ing asset val­ues mak­ing lit­i­ga­tion a more com­mer­cial­ly viable option for appli­cants, and an over­all increased aware­ness of legal rights root­ed in suc­ces­sion laws. Accord­ing to the NSW Supreme Court (Court) Pro­vi­sion­al Sta­tis­tics 2025, fam­i­ly pro­vi­sion claims have seen a reduc­tion in promi­nence from 2023 with 1,064 fil­ings to 2025 with 960 fil­ings. In com­par­i­son, fil­ings for con­tentious pro­bate pro­ceed­ings saw sig­nif­i­cant growth with 348 fil­ings in 2023 to 507 fil­ings in 2025.

What is tes­ta­men­tary capac­i­ty and how does the Court deter­mine whether a tes­ta­tor lacks it?

Tes­ta­men­tary capac­i­ty refers to one’s legal men­tal com­pe­tence to exe­cute a valid will or tes­ta­men­tary doc­u­ment. The tes­ta­tor must have the abil­i­ty to under­stand the nature of a will and com­pre­hend the extent and dis­po­si­tion of their assets. The long­stand­ing legal test for assess­ing tes­ta­men­tary capac­i­ty is root­ed in Banks v Good­fel­low [1870] 5 LR QB 549 (Banks v Good­fel­low). This case estab­lished the fol­low­ing cri­te­ria for the Court to deter­mine tes­ta­men­tary capac­i­ty by assess­ing whether, at the time of exe­cu­tion, the testator:

1. under­stood the nature of the will and its effect;
2. had some under­stand­ing of the extent of the prop­er­ty of which they were dis­pos­ing of under the will;
3. were aware of the per­sons for whom they would usu­al­ly be expect­ed to pro­vide for; and
4. was free from any delu­sion of the mind that would affect their dis­po­si­tions to those people.

These prin­ci­ples help answer the ulti­mate issue of con­tentious pro­bate pro­ceed­ings, whether the will or tes­ta­men­tary doc­u­ment is the last of a free and capa­ble testator. 

Mod­ern day ref­er­ence to the Banks v Good­fel­low capac­i­ty test

Although estab­lished over 150 years ago, Banks v Good­fel­low is still con­sid­ered the lead­ing case to deter­mine tes­ta­men­tary capac­i­ty of a tes­ta­tor in con­tentious pro­bate pro­ceed­ings. The prin­ci­ples remain rel­e­vant and are often referred to by the Court in their rea­son­ing for mak­ing their judge­ment. We include some recent case exam­ples of the appli­ca­tion of these principles:

In Cha­lik v Cha­lik [2025] NSW­CA 136, one of the deceased tes­ta­tor’s chil­dren con­test­ed a will where the entire estate was left to the oth­er child, argu­ing that at the time of exe­cu­tion, the deceased tes­ta­tor suf­fered from cog­ni­tive impair­ment and was vul­ner­a­ble to influ­ence. The Court, and sub­se­quent­ly the NSW Court of Appeal, ruled in favour of the claimant, pro­hibit­ing the will to be admit­ted for pro­bate. Bas­ing their deci­sion on evi­dence such as clin­i­cal records not­ing cog­ni­tive defects both pri­or and post exe­cu­tion of the will, the Court applied the prin­ci­ples of Banks v Good­fel­low as mat­ters of com­mon­sense, rather than med­ical ques­tion. Med­ical evi­dence in rela­tion to the med­ical con­di­tion of a deceased tes­ta­tor may be high­ly rel­e­vant and some­times direct­ly sup­port or deny capac­i­ty to under­stand the mat­ters of the Banks v Good­fel­low tes­ta­men­tary capac­i­ty test.

In Petith v New South Wales Trustee and Guardian; Bone v New South Wales Trustee and Guardian (No 2) [2024], two com­pet­ing appli­ca­tions for pro­bate were made by the deceased tes­ta­tor’s broth­er and de fac­to part­ner using two dif­fer­ent wills, dat­ed 2019 and 2021 respec­tive­ly. The deceased tes­ta­tor did not have cog­ni­tive impair­ment stem­ming from any med­ical con­di­tion or from old age, but rather from chron­ic alco­hol abuse in the peri­od lead­ing up to exe­cut­ing the 2021 will. The Court found that the lat­er will was invalid and that the 2019 will was to be admit­ted for pro­bate. Key evi­dence used in this case was the file note of the solic­i­tor instruct­ed to draft the 2021 will on the date of exe­cu­tion. The Court found that there was a lack of detailed expla­na­tion to ade­quate­ly test for the deceased tes­ta­tor’s capac­i­ty and a fail­ure to explain the steps tak­en to ver­i­fy their com­pre­hen­sion, lack­ing ref­er­ence to the Banks v Good­fel­low criteria.

How­ev­er, an exam­ple of an unsuc­cess­ful con­tentious pro­bate claim was in the deci­sion of Knox v Pea­cock [2024] NSWSC 976. A friend of the deceased tes­ta­tor chal­lenged a 2020 will where the entire estate was left to a char­i­ty ben­e­fi­cia­ry, argu­ing a lack of tes­ta­men­tary capac­i­ty. Although suf­fer­ing from at least some lev­el of cog­ni­tive impair­ment due to major cog­ni­tive dis­or­der, expert evi­dence sug­gest­ed that patients often retain seman­tic and long-term knowl­edge of a crys­tallised nature in the mid­dle stages of the dis­or­der. There was no evi­dence to sup­port that the deceased tes­ta­tor was aware of the val­ue of her assets, but this had no par­tic­u­lar con­se­quence in this case due to her knowl­edge of prop­er­ty owned at the time of exe­cut­ing the will. The Court found that the deceased tes­ta­tor had capac­i­ty to make the 2020 will as she under­stood the sig­nif­i­cance of mak­ing a will and what its effect would be, under­stood the nature of her assets and was able to com­pre­hend the moral claims of poten­tial ben­e­fi­cia­ries, sat­is­fy­ing the prin­ci­ples of the Banks v Good­fel­low capac­i­ty test. The deceased tes­ta­tor was not suf­fer­ing from any delu­sions or dis­or­ders that would make her unable to deal with dis­pos­ing her property.

Swaab expe­ri­ence in con­tentious pro­bate proceedings

Our wills and estates team at Swaab have had exten­sive expe­ri­ence in the field of con­test­ed pro­bate pro­ceed­ings, both in advo­cat­ing for appli­cants and defend­ing estates. Recent­ly, our client was suc­cess­ful in Ander­son v Yong­pairo­j­wong [2024] NSW­CA 220, where our client defend­ed the deceased tes­ta­tor’s estate against a claim that the final will was invalid by lack of tes­ta­men­tary capac­i­ty. At both the Court and NSW Court of Appeal, the daugh­ter of the deceased tes­ta­tor argued that the final will of the deceased tes­ta­tor was invalid as she was suf­fer­ing from brain can­cer at the time of exe­cut­ing the will and lacked tes­ta­men­tary capac­i­ty. Although the claimant pro­vid­ed expert med­ical reports to sup­port her argu­ment, the Court attrib­uted lim­it­ed weight to them as the experts had not exam­ined the deceased tes­ta­tor and did not take into con­sid­er­a­tion any lay evi­dence bear­ing upon cog­ni­tion at the time of exe­cut­ing the will. The Court found that the deceased tes­ta­tor knew and approved of the con­tents of the final will and there was a fail­ure to estab­lish any ​“sus­pi­cious cir­cum­stances” sur­round­ing the draft­ing of the will.

Avoid­ing the ques­tion of your tes­ta­men­tary capac­i­ty when draft­ing your will and tes­ta­men­tary documents

Prov­ing a lack of tes­ta­men­tary capac­i­ty for a deceased tes­ta­tor is often a dif­fi­cult task, espe­cial­ly when there is an abun­dance of evi­dence such as med­ical records or solic­i­tor file notes that prove otherwise.

Plan­ning ahead is always wise and can poten­tial­ly pro­tect your estate from con­tentious pro­bate pro­ceed­ings. When think­ing about draft­ing your estate plan­ning doc­u­ments, espe­cial­ly your will and tes­ta­men­tary doc­u­ments, it is always a good idea to seek legal advice. Estate plan­ning solic­i­tors are high­ly trained in recog­nis­ing the signs of dimin­ished capac­i­ty in tes­ta­tors and this knowl­edge can help you make a valid will.