Medical Evidence for Testamentary Capacity to Make a Will

Introduction

Questions about testamentary capacity often arise in a will dispute, especially if dementia or other conditions may have affected the deceased’s decision-making at the time the will was made. Establishing whether someone had the capacity to make a will requires careful consideration of medical records, specialist assessments, and the context in which the will was created.

Because these disputes can be complex and emotionally charged, it is essential to consult a wills and estates lawyer who can help gather and present the right evidence to support or challenge a will. Legal guidance ensures that the deceased’s true intentions are respected and that the process is handled with the necessary expertise.

Defining Testamentary Capacity

The Legal Test for the Capacity to Make a Will

For a will to be legally valid, the person making it must have what is known as testamentary capacity. The legal standard for this was established in the English case of Banks v Goodfellow [1870] LR 5 QB 549. This test outlines several key requirements that the will-maker must satisfy at the time they sign their will.

To have the required capacity to make a will, the person must:

• Understand the nature and effect of making a will, appreciating the significance of the act.
• Be aware of the general character, extent, and value of the assets they are distributing.
• Comprehend and appreciate who might have a reasonable claim on their estate, such as family members, and understand the basis of those claims.
• Not be affected by any mental disorder or delusion that influences their decisions or prevents them from making a rational choice about how to distribute their property.

Medical Conditions That Can Affect Decision-Making

Certain medical conditions can impair a person’s cognitive functions and affect their testamentary capacity. Conditions such as dementia, senility, or the influence of drugs and alcohol can reduce an individual’s mental state and impact their ability to make sound judgments.

However, a diagnosis of a condition like dementia does not automatically mean a person lacks the capacity to make a will. The critical question is whether the illness actually impaired their understanding and decision-making at the specific moment the will was created.

For instance, a person may suffer from episodic delusions or hallucinations but still possess the necessary capacity during lucid periods.

Key Medical Evidence in a Testamentary Capacity Dispute

Reports & Records from Medical Professionals

When a will is disputed on the grounds of a lack of testamentary capacity, medical records from the deceased’s treating doctors are a primary source of evidence. These documents can provide a detailed history of the person’s cognitive state, especially if they contain a diagnosis for a condition like dementia.

The information is often gathered retrospectively, relying on notes made around the time the will was signed. Importantly, a doctor’s duty of confidentiality continues even after a patient has passed away.

To access these medical records for a will dispute, the person making the request must have the proper legal authority. A treating doctor can only provide an opinion on past capacity if:

• They assessed the patient’s cognitive abilities at the relevant time
• They have the documentation to support their view

Assessments from Specialists

In cases where a person’s cognitive ability is in question, an assessment from a specialist can provide a more detailed expert opinion. If a general practitioner does not feel they have the necessary skills or experience to assess testamentary capacity, they may refer the patient to a specialist.

These experts are often called upon to provide a comprehensive evaluation of cognitive impairment. The types of specialists who are comfortable performing such assessments include:

• Geriatricians
• Psychogeriatricians
• Neuropsychologists

Cognitive Screening Tests & Brain Scans

Specific medical tests are sometimes used to screen for cognitive issues, but courts view them with caution. For example, a CT scan might show physical changes in the brain, such as vascular disease consistent with dementia, but this does not automatically prove a lack of capacity to make a will.

Similarly, a mini-mental state examination (MMSE) is a common tool for screening cognitive function. However, the courts have established that an MMSE is generally considered insufficient on its own to determine legal testamentary capacity.

These tests do not provide reliable information about the specific degree or nature of impairment as it relates to the legal requirements for making a will.

How Courts Assess Medical Evidence

The Role of a Doctor’s Opinion in an Assessment

When a dispute arises over a will, a doctor’s role is to provide a professional opinion on the patient’s cognitive abilities. This medical assessment informs the legal process, yet it is not the final word.

Responsibility for the ultimate determination sits with two legal actors:

• the drafting lawyer, who must decide whether the client has legal testamentary capacity before the will is signed
• the court, which makes the final ruling if the matter proceeds to a hearing, weighing the medical opinion alongside the rest of the evidence

Balancing Medical Evidence & Lay Evidence

Courts consider multiple sources when assessing capacity, and medical reports are not always decisive. Significant weight is often placed on “lay evidence,” drawn from people who observed the deceased when the will was made.

The solicitor’s observations frequently carry particular influence because an experienced practitioner is trained to detect capacity issues and will record any concerns. Recent cases illustrate how courts favour such evidence:

• In Drivas v Jakopovic [2019] NSWCA 218, the court preferred the solicitor’s detailed account over medical tests suggesting dementia.
• In Middlebrook v Middlebrook [1962] 36 ALJR 216, the court accepted the solicitor’s description of the deceased’s condition rather than a doctor’s note written the day before.

The Importance of Consulting a Wills & Estates Lawyer

A Lawyer’s Role in a Testamentary Capacity Assessment

While medical professionals can provide expert opinions on a person’s cognitive condition, the ultimate responsibility for determining whether an individual has legal testamentary capacity rests with the lawyer making a will. Testamentary capacity is a legal standard, not a medical diagnosis, and a solicitor must consider all available information, including medical reports, observations, and instructions given by the testator before forming a final view on whether that standard is met.

When preparing a will, it is essential that testamentary capacity is properly assessed at the time the document is signed. Where any doubt arises, a prudent lawyer will take additional steps to protect the validity of the will, such as obtaining a medical assessment and carefully documenting the circumstances in which the instructions were given. This proactive approach helps ensure the will reflects the testator’s true intentions and reduces the risk of future challenges.

Why You Need Legal Guidance for a Will Dispute

Challenging a will on the basis of a lack of testamentary capacity, particularly in cases involving dementia or cognitive decline, is a complex and evidence-driven process. Success depends on the careful collection and presentation of persuasive material, which may include medical records detailing the testator’s mental state, testimony from witnesses familiar with their condition, and the file notes and records of the solicitor who prepared the will.

Engaging an experienced wills and estates lawyer is critical in these circumstances. A specialist practitioner can identify the evidence required to support a capacity challenge, assess the strengths and weaknesses of the case, and provide clear advice on the legal and practical consequences of pursuing the dispute. With proper legal guidance, the court process is approached in a structured and informed way, helping to ensure that the deceased’s true intentions are properly examined and upheld.

Conclusion

Disputes over a will’s validity often hinge on proving testamentary capacity, which requires a careful review of medical records, specialist assessments, and lay evidence to determine if the will-maker met the legal standard. Conditions like dementia can complicate this assessment, but the court ultimately considers all evidence to decide if the person understood their actions when the will was made.

If you are facing a dispute over a will or have concerns about a loved one’s capacity to make a will, it is crucial to seek expert legal guidance. Contact the experienced wills and estates lawyers at PBL Law Group today for trusted advice on how to handle your case and ensure the deceased’s true intentions are respected.

Frequently Asked Questions