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The impact of mental illness on testamentary capacity

Making a will is an important rite of passage into adulthood.  Over time, a person’s will may be up-dated to reflect changing cirucmstances or allegiances.  Some people write their own wills, more commonly a lawyer is engaged to draft the will. 

The difficulty with a will of course is that by its very nature it is only operative when the only person who can give full evidence as to the reasoning behind it and the circumstances of its creation is dead.  Tricky. 

If a will has been drafted by a professional that person may be able to give evidence as to the person’s capacity to write a will. However, Anthony Grant, Barrister recently reported on a study that showed that 66% of lawyers were unable to identify that a client lacked testamentary capacity.  

However, what of the situation where a person is suffering from mental illness? In Anthony Grant’s report he noted that:

“In the study in which the lawyers failed so abysmally, a parallel group of psychiatrists were asked the same two questions and their assessments were significantly better than the lawyers’. Seventy-three per cent of them correctly identified that the client had a mental disorder (as opposed to only two per cent of the lawyers) and 84 per cent of the psychiatrists identified that the client might lack the capacity to make a will (as opposed to 60 per cent of the lawyers).”

Not flash.

Practically what does this mean?  Legal professionals are not mental health professionals (regardless of how it might seem some days in practice) – and what about people who write their own wills without the benefit of a lawyer who might, or might not, identify issues as to capacity.

A recent decision of Collins J sheds some light on how this delimma is resolved in the context of a probate application where questions of capacity were raised.  Interestingly in that case, one medical expert was of the view that the will-maker had testamenatary capacity and the other formed the contrary view.  So what’s a judge to do?

It was accepted that the will-maker had a history of mental illness.  This was not conveyed to the legal executive who drafted the will-maker’s final will.

When the matter came before the court the decision of the court  was couched in the following introduction:

“The question of whether [the will-maker] had testamentary capacity … involves a legal analysis that is informed by medical evidence. Unfortunately, while the law and medicine intersect in this case, the two disciplines are not synchronised. As a consequence, the application of legal principles to the medical evidence I have heard does not produce a result with which psychiatrists would necessarily concur.”

The key principles governing testamentary capacity are:

  • a person must have the requisite mental capacity at the time they execute the will, accordingly a person who is generally suffering mental health issues can make a valid will during a period of lucidity
  • awill that is rational on its face will, absent evidence to the contrary, be presumed to have been made with testamentary capacity
  • if a will-maker suffered from a serious mental health illness immediately prior and subsequent to making the will there is a presumption that the person did not have testamentary capacity (John Martyn, Charlotte Ford, Alexander Learmouth, Mika Oldham Theobold on Wills (17th ed, Thomson Reuters, London, 2010) at para 3-010 and Brown v Pourau [1995] 1 NZLR 352 (HC) at 364)

To evidence testamentary capacity is necessary to establish that the will-maker:

  • understood he or she was making a will and the consequences of doing so
  • knew what property was to be bequested
  • understood the moral claims of those who should have been considered to be beneficiaries when making the will

From a legal perspective there is a presumption that in the absence of evidence to the contrary, a person who suffers serious mental illness prior to and subsequent to making a will suffered from that mental illness at the time the will was made.

However, even if a person has a serious mental illness, that person can still have testamentary capacity if the willmaker understood the person was making a will, knew the extent of that person’s property and understood the moral claims of those who should be considered to be beneficiaries.

In this regard Collins J states that:

“[76] It is at this point that the law and psychiatric evidence may appear to diverge. The reason for this is that the law prescribes those who have moral claims which should be considered when a will is made, independently of the testator’s mental capacity.”

So from a legal perspective testamentary capacity of the will maker turns on not the person’s mental health but their ability to understand the moral claims against their estate.  However, moral claims are largely (but not exclusively) determined by reference to the Family Protection Act 1955 (as a statement of what has been derived from previous case law regarding who a testator must not forget) not an objective assessment of what would be moral for that particlar will-maker.

To meet any moral claims the will maker must make “adequate provision … for the proper maintenance and support” of those who claim to have been owed a moral duty to benefit from the will. Persons entitled to claim under the Family Protection Act 1955 are limited to six categories:

  • spouse or civil union partner of the deceased
  • de facto partner who was living in a de facto relationship with the deceased at the date of death
  • children of the deceased.
  • grandchildren of the deceased living at the date of death
  • stepchildren of the deceased who were being maintained wholly or partly or who were legally entitled to be maintained wholly or partly by the deceased immediately before the date of death
  • parents of the deceased.

In the case before the court as the sole beneficiary was a person for whom the will-maker owed a moral duty, the will was able to be probated.

This long consideration of capacity may seem a little off topic for a trust blog.  For those of you who have persevered this far – actually it is totally on point.  Increasingly wills do little more than mop up the residue with the bulk of a person’s estate being disposed of to a trust or trusts during the settlor’s life-time.  However, what of the situation where questions are later asked about capacity in the context of distributions to trust?

Vigilence to determine capacity and to recognise when it may not be there is essential both in the service of clients as well as in the maintenance and protection of professional reputations.  The prudent professional should have systems in place to assess such matters. 


  • McFadzean v Moleta [2013] NZHC 1601
  • Bishop v O’Dea (1999) 18 FRNZ 492
  • Re White (Deceased) [1951] NZLR 393
  •  John Martyn, Charlotte Ford, Alexander Learmouth, Mika Oldham Theobold on Wills (17th ed, Thomson Reuters, London, 2010) at para 3-010
  • Woodward v Smith[2009] NZCA 215 at [19];Banks v Goodfellow (1870) LR 5Q13 549 at 565
  • Brown v Pourau [1995] 1 NZLR 352


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