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Testamentary Capacity in Queensland: What It Means, How It Is Tested and How to Protect Your Will
Every valid Will in Queensland rests on one essential foundation: the will-maker must have had testamentary capacity at the time they signed it. Without it, even a perfectly typed and witnessed Will can be challenged and overturned. For families across Brisbane, the Gold Coast and the Sunshine Coast, understanding testamentary capacity is one of the […]
Testamentary Capacity in Queensland: What It Means, How It Is Tested and How to Protect Your Will
Every valid Will in Queensland rests on one essential foundation: the will-maker must have had testamentary capacity at the time they signed it. Without it, even a perfectly typed and witnessed Will can be challenged and overturned. For families across Brisbane, the Gold Coast and the Sunshine Coast, understanding testamentary capacity is one of the most important steps in protecting an estate plan, and in protecting the people you love from costly disputes after you are gone.
At Aylward Game Solicitors, our Wills and Estates team, led by Senior Associate Ian Field and supported by Accredited Specialist Kauri Burgess, regularly advises clients on capacity issues, contested estates and the practical steps that make a Will harder to challenge.
This guide explains the definition of testamentary capacity, the legal test the courts apply, how testamentary capacity is assessed in practice, and what happens when capacity is in doubt.
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What Is the Meaning of Testamentary Capacity?
The testamentary capacity, meaning, in plain terms, the ability of an individual to understand and create a legally valid Will. It is sometimes described as having “sound mind, memory and understanding”. Capacity is not an all-or-nothing diagnosis. A person can lack the capacity to manage their finances but still have testamentary capacity to make a Will, or vice versa, because capacity is decision-specific and is assessed against the particular legal test for that particular decision.
People in Queensland are generally considered capable of making personal decisions unless there are valid reasons to doubt their capacity. A diagnosis such as dementia, depression, or another cognitive impairment does not automatically prevent a person from making a valid Will. The key issue is whether the person understood the nature and effect of the Will when providing instructions and signing it.
What Does Testamentary Mean?
The word testamentary comes from the Latin testamentum, meaning “will” or “testament”. It refers to anything connected with a Will or the disposition of a deceased person’s estate. So when lawyers refer to “testamentary capacity to make a Will”, they are simply describing the legal and mental competence required to create a document that will validly dispose of a person’s assets after death.
The Legal Test for Testamentary Capacity: Banks v Goodfellow
The elements of testamentary capacity were set out by the English court in the landmark 1870 decision of Banks v Goodfellow (1870) LR 5 QB 549, and this remains the leading testamentary capacity test applied by Australian courts, including in Queensland, more than 150 years later. (Testamentary Capacity in Queensland, 2025)
Under the Banks v Goodfellow test, a will-maker must, at the time of giving instructions and signing their Will:
- Understand the nature of the act and its effects. They must know they are making a Will and broadly understand what that document does.
- Be aware of the nature and approximate value of the estate they intend to distribute. A general awareness of their assets is enough; they do not need to recall every bank account or asset down to the dollar.
- Comprehend and appreciate the claims to which they ought to give effect. This means understanding who might reasonably expect to benefit, such as a spouse, children, or other dependents, and weighing those competing claims.
- Be free of any disorder of the mind that perverts their sense of right, or that produces an insane delusion influencing the disposal of their assets.
All four limbs must be satisfied. A person does not need a perfect memory or a sophisticated understanding of legal language. Courts have repeatedly confirmed that testamentary capacity is not a memory test, and a person can have some cognitive impairment, including early dementia, while still validly making a Will.
Testamentary Capacity in Queensland: What the Succession Act Says
Testamentary capacity in Queensland is governed by the Succession Act 1981 (Qld), which sets out the formal rules for making and proving a valid Will.
- Section 10 sets out the formal execution requirements. A Queensland Will must be in writing, signed by the testator, and signed by two witnesses who are both present at the same time.
- Section 11 provides that if a beneficiary, or their spouse, signs as a witness, the gift to that person is voided, even though the rest of the Will remains valid. (Succession Act 1981 Qld)
- Section 18 gives the Supreme Court of Queensland a dispensing power. If a document does not meet the formal requirements but the Court is satisfied the deceased intended it to operate as their Will, it can still be admitted to probate. This power was famously applied in Re Nichol; Nichol v Nichol [2017] QSC 220, where an unsent text message saved on a deceased man’s phone was accepted as a valid informal Will because the Court was satisfied he had testamentary capacity and intended the message to operate as his Will. (Simmons, 2017)
- Section 21 allows the Supreme Court to authorise a statutory Will to be made, altered or revoked on behalf of a person who currently lacks testamentary capacity, where the proposed terms reflect what that person would likely have wanted if they had capacity. (SUCCESSION ACT 1981)
- Section 28 clarifies how the statutory will provisions interact with the Guardianship and Administration Act 2000 (Qld), GA & the Powers of Attorney Act 1998 (Qld), POA, which deal with decision-making capacity more broadly, separate from testamentary capacity specifically. (Powers of Attorney Act 1998)
How Is Testamentary Capacity Assessed?
A testamentary capacity assessment goes well beyond a quick chat or a simple cognitive screen. A mini-mental state examination might flag a possible cognitive impairment, but on its own, it is not sufficient to determine whether someone has the specific, decision-specific capacity to make a Will.
In practice, assessment usually involves:
- The solicitor’s own enquiries. An experienced Wills & Estates lawyer will ask open, non-leading questions about the client’s family, assets and intentions, and will keep detailed file notes of those answers, particularly where instructions involve an unusual or significant change from a previous Will.
- The “Golden Rule”. Under the Golden Rule, when a person making a Will is of advanced age or experiencing significant health issues, it is considered good practice for a doctor to assess and confirm that the person understands the nature and effect of the Will. The medical practitioner should also make a written record of that assessment.
- Referral to a specialist. Where there is genuine doubt, a referral to a geriatrician, psychogeriatrician or neuropsychologist for a formal capacity assessment is often the safest course, rather than relying on a general practitioner’s brief impression.
- Contemporaneous documentation. Courts give significant weight to file notes, medical letters and witness observations made at the time the Will was signed. Evidence created years later, after a dispute has already started, is far less persuasive.
Updated Queensland Law About Wills and Estate Planning
Queensland’s wills and estate planning landscape has continued to evolve, with significant reforms affecting succession planning, trusts, digital assets, and estate administration. A person’s testamentary capacity refers to their ability, in mental terms, to understand and execute a legally valid Will
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Key Updates in Queensland
1. Trust Law Reform
One of the most significant developments is the commencement of the Trusts Act 2025 (Qld) on 28 April 2026, replacing the long-standing Trusts Act 1973 (Qld). The new legislation modernises trust administration, clarifies trustee duties, and strengthens beneficiaries’ rights to access trust information. These reforms affect family trusts, testamentary trusts, and other estate planning structures. (Trusts Act 2025)
2. Extended Trust Vesting Period
Queensland has increased the maximum vesting period for trusts from 80 years to 125 years. (Davis, 2025) This change allows families and business owners greater flexibility in long-term wealth preservation and intergenerational estate planning.
3. Greater Recognition of Digital Assets
Estate plans should now specifically address digital assets, including cryptocurrency, online accounts, cloud storage, digital photographs, and social media profiles. Recent legal developments have increased the importance of identifying and managing these assets within wills and estate administration processes. (Estate Administration in Queensland, 2026)
4. Family Provision Claims
Recent succession law reforms continue to reinforce the rights of eligible family members, including spouses, de facto partners, children, and certain dependents, to contest a will on the basis that insufficient provision has been made for them. (Review of the Succession Act 1981) Careful estate planning can help reduce the risk of disputes and litigation after death.
5. Informal and Electronic Testamentary Documents
Queensland courts retain the power to recognise informal testamentary documents where sufficient evidence shows the deceased meant the document to operate as a will. In some circumstances, emails, text messages, and electronic records may be considered by the court. However, a formally executed will remains the safest option.
Essential Estate Planning Documents
A comprehensive estate plan should include:
- A valid Will.
- An Enduring Power of Attorney.
- An Advance Health Directive (where appropriate).
- Documentation relating to trusts, businesses, and digital assets.
Why Review Your Estate Plan?
You should review your will & estate planning arrangements when:
- You marry, divorce, or enter a new relationship.
- You acquire significant assets.
- You start or sell a business.
- You establish or amend a family trust.
- You acquire substantial digital assets.
- There are changes in succession or trust laws.
What Is an Example of Testamentary Capacity?
Consider a hypothetical: an 84-year-old woman with an early dementia diagnosis instructs her solicitor to update her Will so that her estate is shared evenly between her four grandchildren, rather than her two adult children, as in her previous Will.
During the meeting, she correctly describes her family members, gives a general but accurate summary of her assets, including her home and superannuation, and explains, without prompting, why she wants to benefit her grandchildren rather than her children. She forgets some minor account details but recalls the substance of her estate and reasoning clearly.
This is a clear example of testamentary capacity being present despite a diagnosed cognitive condition. By contrast, a lack of testamentary capacity might look like a will-maker who cannot identify their own children, has no general sense of what they own, or is acting under a delusion (for example, believing a loyal family member has been stealing from them with no factual basis) that directly explains why that person has been excluded.
The Affidavit of Testamentary Capacity
An affidavit of testamentary capacity is a sworn statement, usually prepared by the solicitor who took instructions for the Will, the treating doctor, or both, setting out the basis for the opinion that the will-maker had capacity at the relevant time. It typically records the deponent’s qualifications and relationship to the will-maker, the questions asked, the will-maker’s answers, and the reasoning behind the opinion reached.
These affidavits become especially important where a grant of probate is contested or where the Probate Registry requests further evidence before issuing a grant. A solicitor or doctor is never obliged to sign a pre-prepared affidavit handed to them by someone else. They should only swear an affidavit that genuinely reflects their own independent assessment, and should decline or amend it if it does not.
What Happens When Someone Lacks Testamentary Capacity?
If a court finds that the will-maker lacked testamentary capacity, the Will is invalid. The estate is then distributed under the most recent earlier valid Will, or, if none exists, according to Queensland’s intestacy rules under the Succession Act. This can mean assets pass to people the deceased never intended to benefit, and it almost always involves delay, legal costs and family conflict that a properly assessed and documented Will would have avoided. (Testamentary Capacity in Queensland, 2025)
Where a person currently lacks capacity but a Will still needs to be made or updated on their behalf, an application that the deceased meant the document to operate as a will allows the Supreme Court to step in, provided the proposed terms reflect what that person would most likely have wanted if they had capacity.
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How Aylward Game Solicitors Can Help
Navigating Queensland’s evolving wills and estate planning laws can be complex. Whether you are preparing a new will, reviewing your current estate arrangements, or dealing with estate administration matters, administering a loved one’s estate, Aylward Game Solicitors can provide practical legal guidance tailored to your circumstances.
Our experienced wills & estates team can assist with:
Preparing and Updating Wills
Having a valid will in place ensures your property is allocated according to your instructions and helps minimise potential conflicts. We can prepare new wills, review existing wills, and update estate planning documents following Significant personal events, such as marriage, divorce, the arrival of a child, or notable changes in assets or finances.
Estate Planning Strategies
Effective estate planning involves more than simply preparing a will. We can advise on testamentary trusts, asset protection strategies, superannuation death benefits, business succession planning, and wealth transfer arrangements designed to protect your family’s future.
Enduring Powers of Attorney and Advance Health Directives
We assist clients in preparing Enduring Powers of Attorney (EPOAs) and Advance Health Directives to ensure trusted individuals can make financial, personal, and healthcare decisions if capacity is lost.
Estate Administration and Probate
Serving as an executor can require considerable time and effort, and may be emotionally and administratively challenging. We provide guidance with probate, estate administration, asset distribution, and compliance with Queensland succession laws.
Will Disputes and Estate Litigation
Where disputes arise, our solicitors can advise on contested wills, family provision applications, executor disputes, and estate litigation. Our aim is to handle disputes in a timely and cost-effective manner while protecting our clients’ legal interests.
Advice on Recent Queensland Law Reforms
With ongoing changes to Queensland succession and trust laws, including reforms affecting trusts, estate administration, and asset protection structures, we can review your estate plan to ensure it remains legally effective and aligned with current legislation.
Why Choose Aylward Game Solicitors?
Aylward Game Solicitors has offices across Brisbane, the Gold Coast, and the Sunshine Coast and offers extensive experience in wills, estate planning, probate, and estate disputes. Our team provides clear, practical advice focused on protecting your assets, minimising future complications, and giving you peace of mind.
If you would like to discuss testamentary capacity, update your Will, or get advice on a potential estate dispute, contact Aylward Game Solicitors on 07 3236 0001 to arrange a consultation with our Brisbane, Gold Coast or Sunshine Coast team.
Frequently Asked Questions
What is the meaning of testamentary capacity?
Testamentary capacity is the mental ability a person must have to make a valid Will. It requires understanding the nature of making a Will, the extent of one’s assets, and the people who might reasonably expect to benefit, without being affected by a disorder of the mind.
How is testamentary capacity determined?
Testamentary capacity is determined by applying the test from Banks v Goodfellow (1870), assessed by a solicitor at the time instructions are given, and supported where needed by a medical opinion. Ultimately, if disputed, a court decides based on the available evidence.
What is an example of testamentary capacity?
A person with early dementia who can still accurately describe their family, give a general account of their assets, and explain their reasoning for a particular distribution shows testamentary capacity, even though their condition might affect other areas of decision-making.
What does testamentary mean?
Testamentary comes from the Latin word testamentum, meaning “will”. It describes anything relating to a Will or to the disposal of a person’s estate after death, such as testamentary capacity, testamentary trusts and testamentary gifts.
How to test testamentary capacity?
Testamentary capacity is tested by asking the will-maker open, non-leading questions about their family, assets and intentions, and recording the answers in detail. Where doubt exists, referral to a geriatrician, psychogeriatrician or neuropsychologist for a formal assessment is recommended.
What are the 4 criteria for capacity?
The four criteria from Banks v Goodfellow are: understanding the nature and effect of making a Will, knowing the general extent of one’s assets, appreciating who might reasonably expect to benefit, and being free of any disorder of the mind affecting that decision.
What is the golden rule of capacity?
The Golden Rule, from Kenward v Adams (1975), recommends that an elderly or seriously unwell person’s will be witnessed or approved by a medical practitioner who confirms their capacity and records that assessment. It is best practice, not a binding legal requirement.
How do you prove you have capacity?
Capacity is usually shown through a solicitor’s detailed file notes taken when instructions are given, supported by a medical practitioner’s contemporaneous written assessment if there is any doubt. An affidavit of testamentary capacity can later confirm this opinion if the Will is challenged.
What are the disadvantages of a testamentary trust?
Testamentary trusts can involve higher setup and ongoing administration costs, accounting and tax preparation fees, and greater complexity than a simple Will. They do not avoid probate, and undistributed trust income can still be taxed.
Who is not allowed to inherit from their parents?
Under the forfeiture rule, a person who unlawfully kills a parent generally cannot inherit from that parent’s estate. Beyond this, parents can lawfully exclude a child from their Will, although a disinherited child may still bring a family provision claim.
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Continue Exploring Related Legal Topics
- Contesting a Will in Queensland
- Wills and Power of Attorney
- Wills and Estate Planning in Brisbane
- What is a Testamentary Trust Will?
- How to Fix Mistakes or Ambiguity in a Will
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