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The importance of Testamentary Capacity when making your Will

The importance of Testamentary Capacity when making your Will

When solicitors are approached by people wishing to make a new will or amend an existing will one of the paramount considerations is whether or not the person can demonstrate that they have the legal capacity to do so and have not, to use a colloquialism “lost their marbles.”
The recent decision of Ryan v Dalton; Estate of Ryan from the New South Wales Supreme Court highlights the importance of this.
In this case, the will maker was Mr Francis James Ryan (“Frank”) who passed away in 2014 aged 90. Prior to his death, Frank made two vastly different wills. The first was dated in 2011 and the subsequent in 2013.
The Court had to determine whether or not Frank had the required level of capacity when making his 2013 Will. The court analysed a myriad of medical and family evidence and determined that Frank did not have testamentary capacity when he made his 2013 Will as he was suffering from dementia. As a result, the 2011 Will was upheld and was to be admitted to probate.
The Judge considered that whilst Frank’s solicitor did her best in taking notes for the 2013 Will drafting, she should have checked Frank’s medical records and obtained a letter of capacity from Frank’s general practitioner.
The court considered there to be a number of instances where a solicitor must have discussions with the client or carer in relation to the issue of capacity including:
• If the person is over the age of 70;
• If the person is being cared for someone;
• If the person resides in a nursing home or similar facility; or
• About whom for any other reason the solicitor might have concern about capacity.
The case highlights the need for solicitors to ensure they maintain accurate and extensive file notes from client consultations and the evidences the importance of client capacity when drafting Wills to ensure that the Will maker’s final wishes are accurately reflected and carried out.
Should you have any questions, please do not hesitate to contact our office on 9585 6455 or via email to

Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007.
Ibid, 1.
Ibid, 2.
Ibid, 6.
Ibid, 95.
Ibid, 107.

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