Lack of Capacity When Making a Will – Why Executors Should Seek Professional Assistance

A valid Will must reflect the true intentions of the person making it. For this reason, the law requires that the person (known as the testator) has testamentary capacity at the time the Will is created. When there are concerns about capacity—whether due to age, illness, cognitive decline, or undue influence—the validity of the Will may be questioned. Executors are often the first to encounter these concerns when administering an estate, and obtaining professional guidance is essential.

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What is Testamentary Capacity?

To have the capacity to make a Will, the testator must understand:

• What a Will is and that it will take effect after their death
• The nature and extent of their assets
• The people who may have a moral claim on their estate
• The consequences of including or excluding certain beneficiaries
• The overall effect of the document they are signing

If any of these elements are missing, the Will may be challenged.

Common Reasons Capacity May Be in Doubt

Concerns often arise when the testator has:

• Dementia or Alzheimer’s
• Serious cognitive impairment
• Mental health conditions affecting judgement
• Significant illness or medications impacting awareness
• Pressure or influence from others
• Sudden changes in long-standing estate plans

Even if a testator seemed alert at the time, doubts can surface later, particularly where the Will differs significantly from previous plans.

Why Executors Need to Seek Assistance

Executors have a legal obligation to administer the estate correctly. If there are concerns about the testator’s capacity, executors should seek legal help because:

• A Will that is later declared invalid can expose the executor to personal liability
• Disputes may arise between beneficiaries, especially where unequal distributions exist
• Medical records, witness evidence, and solicitor notes may need careful review
• Executors may need help assessing whether a challenge is likely or defendable
• Early legal advice can prevent unnecessary delays in obtaining probate 

Executors are not expected to resolve capacity concerns alone—this is a complex legal area, and support from experienced Wills and Estates practitioners is essential.

How Browne Linkenbagh Can Support You

We regularly assist executors who are unsure whether a Will is valid due to a possible lack of capacity. Our services include:

• Reviewing the circumstances under which the Will was made
• Assessing witness statements, medical evidence, and solicitor notes
• Advising on the likelihood of a Will being challenged
• Representing executors in probate proceedings or disputes
• Providing practical guidance to ensure the estate is administered safely and correctly 

When capacity issues arise, early advice can protect the estate, the beneficiaries, and the executor’s position.

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Useful Links

Supreme Court of NSW – Probate Division:
https://www.supremecourt.justice.nsw.gov.au 

Legal Aid NSW – Wills and Estates Information:
https://www.legalaid.nsw.gov.au 

NSW Trustee & Guardian:
https://www.tag.nsw.gov.au