Why the will file is different from every other file
In most matters, if your note is thin, you can at least ask the client what they remember. In a probate dispute the client is dead. The court is left with medical records, the recollections of family members who have a stake in the outcome, and whatever the solicitor wrote down on the day.
The Law Society of NSW guide, When a client's mental capacity is in doubt: a practical guide for solicitors (2016), puts it directly. It describes it as fundamental that solicitors take thorough, comprehensive and contemporaneous file notes of any consultation where capacity is in issue, and points out that challenges may not be made for some years after instructions are taken, as is often the case with wills. The guide has since been adapted by other law societies, including the Law Society of Western Australia.
There is a second reason. A solicitor who prepares a will can owe a duty of care to the intended beneficiaries as well as to the client, as the High Court held in Hill v Van Erp (1997) 188 CLR 159. The instructions note is also your record that the will you drew matched what you were told. For how courts treat contemporaneous notes generally, see file notes as evidence.
The test: Banks v Goodfellow
Testamentary capacity in Australia is still measured against Banks v Goodfellow (1870) LR 5 QB 549. In summary, the testator must:
- Understand the nature of making a will and its effect.
- Understand, at least in general terms, the extent of the property they are disposing of.
- Comprehend and appreciate the claims of the people who might reasonably expect to benefit.
- Not be affected by a disorder of the mind or delusion that influences the dispositions they make.
A useful will note is organised so that a reader, years later, can find evidence on each limb. A line that says 'Client appeared to have capacity' records a conclusion. What a court wants is the material the conclusion was drawn from: the question you asked and the answer the testator gave.
Capacity is not the only ground. A will can also be attacked for want of knowledge and approval, or for undue influence, which in probate means actual coercion and must be proved by the person alleging it. Where the person who prepared the will or arranged for it to be made also takes a benefit under it, the court treats that as a suspicious circumstance and the person propounding the will has to dispel the suspicion: Nock v Austin (1918) 25 CLR 519. Your note of who arranged the appointment, who was in the room and who did the talking goes straight to these issues.
What the Supreme Court of NSW said solicitors should do
In Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007, Kunc J held that a will made by an 89 year old testator with dementia was invalid for lack of capacity, even though the solicitor who took instructions had found him bright and talkative. His Honour then set out suggested guidelines for solicitors. They are not binding rules, but they are the closest thing NSW practitioners have to a judicial checklist, and they are widely cited in insurer and law society risk material.
As reported, the guidelines apply where the client is over 70, is being cared for by someone, lives in a nursing home or similar facility, or where there is any other reason for concern about capacity. In those cases:
- The client should always be interviewed alone.
- The solicitor should turn their mind to capacity and undue influence in every case, even if only to dismiss them.
- Instructions should be sought with open, non-leading questions, such as: Who are your family members? What are your assets? To whom do you want to leave your assets? Why have you chosen to do it that way?
- The questions and the answers should be recorded in a contemporaneous file note.
- The solicitor should ask the client, and any carer or care manager, whether there is any reason to be concerned about capacity.
- The process should be repeated when the client returns to sign the will.
Ryan v Dalton is also a warning about what a note cannot do. The solicitor had notes, and there was a GP letter, and the will still failed. A note of a pleasant, lucid conversation is weak evidence if it does not show the testator being tested on the Banks v Goodfellow matters with open questions. If you have real doubt, the Law Society guide recommends a formal assessment by a clinician experienced in cognitive capacity, such as a geriatrician, psychiatrist or neuropsychologist, with a referral letter that explains the legal test.
What to record in a will instructions note
Who attended, and who was asked to leave
Record who made the appointment, who brought the client, who was in the waiting room, and who was in the conference. If a family member sat in for the introduction and was then asked to step out, say so, with the time. If you saw the client alone for the whole of the instructions, say that in terms. This is the single most useful fact in an undue influence case and it takes one line.
The open questions you asked
Write down the question as well as the answer. 'Asked the client to tell me about her family' followed by her answer shows a non-leading question. 'Client confirmed she has three children' could have been a nod to a leading question, and cross-examining counsel will say so.
The testator's own words
Where the testator explains a decision, especially a decision to leave someone out or to treat children unequally, record the words used as closely as you can and put them in quotation marks. The explanation does not have to be fair. It has to be theirs, and it has to be rational in the sense that it is not the product of a delusion. These words also matter later if there is a family provision claim, because they are evidence of the testator's reasons.
Understanding of assets
Ask the client to describe what they own before you look at any list someone else prepared. Record what they said, including rough values, and whether it matched what you later verified. A testator does not need to know figures to the dollar. They do need a general grasp of what they have. Note any assets that will not pass under the will, such as jointly held property and superannuation, and that you explained this.
Understanding of claims
Record who the client identified as the people with a claim on them: spouse or partner, children, stepchildren, dependants, anyone promised something. If someone obvious is missing from their account, ask about it and record the answer. If you gave advice about the risk of a family provision claim, record the advice and the response.
Your observations
Note orientation to day and place if you tested it, memory of earlier conversations, whether the client could repeat your advice back in their own words, any repetition or confusion, hearing, eyesight and language, whether an interpreter was used and who it was, medication or recent hospital admissions the client mentioned, and the length of the conference. The Law Society of NSW guide lists warning signs worth knowing, including a client in hospital or residential care, a recent change of solicitor, and other people doing most of the talking.
Previous wills and what changed
If there is an earlier will, record whether the client remembered it, what is changing, and why. A sharp departure from a long-settled pattern is one of the first things a challenger points to.
Execution
Make a second note on signing: date, time, place, who was present, that the will was read by or to the client, the questions you asked again to confirm understanding, the answers, and the witnesses. Kunc J's guidelines specifically call for the capacity steps to be repeated at this point.
Checklist: will instructions file note
| Item | What the note should show | What it answers later |
|---|---|---|
| Date, start and finish time, place | Including hospital, aged care or home visits | Contemporaneity and length of the assessment |
| Who arranged the appointment | Name and relationship to the client | Suspicious circumstances, undue influence |
| Who attended and who was excluded | Who left the room, when, and that the client was seen alone | Undue influence, independence of instructions |
| Nature and effect of a will | the client's own explanation of what a will does | Banks v Goodfellow limb 1 |
| Assets | the client's unprompted description and rough values | Limb 2 |
| People with a claim | Family members named by the client, and anyone omitted | Limb 3 |
| Reasons for dispositions | the client's words in quotation marks | Limb 4, knowledge and approval, family provision |
| Questions asked | Open questions written out, not just answers | Shows answers were not led |
| Observations | Orientation, memory, repetition, language, interpreter | Capacity generally |
| Enquiry of carer or facility | Who you asked and what they said | Ryan v Dalton guidelines |
| Advice given | Family provision risk, non-estate assets, executor choice | Negligence and beneficiary claims |
| Medical assessment | Whether considered, and why it was or was not obtained | Shows capacity was actively considered |
| Execution note | Capacity questions repeated, will read, witnesses | Due execution, knowledge and approval |
For a broader checklist that covers costs disclosure and general file obligations, use the law firm file note compliance checklist.
Worked example note
The client and every detail below are invented.
- Who arranged it and who was present
Margaret's daughter Karen made the appointment by phone on 9 July. Karen was there when I arrived. Asked Karen to wait in the lounge at 10:10am, and she agreed. Margaret was seen alone from 10:10am to the end.
- Why she wants a new will
Asked Margaret why I was there. Margaret: 'To fix up my will. The old one leaves it in thirds and I don't want that any more.'
- What a will does
Asked what a will does. Margaret: 'It says who gets my things when I'm gone. Doesn't do anything till then.'
- Her family
Asked Margaret to tell me about her family. Three children: Karen (lives in Newcastle, visits weekly), David (Perth) and Susan (died 2019, two adult children, Tom and Alice). Her husband Ron died in 2011. No hesitation. She volunteered all the names and places herself.
- What she owns
Asked what she owns. Margaret said her unit at Merewether sold last year 'for about nine hundred', the sale paid the bond here, 'about five fifty', and the rest is in a term deposit and an everyday account with the same bank. No super. Some jewellery. She did not know the exact balances. This matches the statements Karen produced later.
- Her instructions
- Rest of the estate: 50% to Karen, 25% to David, and 25% shared equally between Susan's children.
- Jewellery to Alice.
- Karen as executor, with David as the back-up executor.
- Why she changed it
Asked why not equal thirds, as in her 2012 will. Margaret: 'Karen has done everything for six years. David rings at Christmas. I'm not cutting him out, I just think it's fair.' Asked if anyone had suggested the change. Margaret: 'No. Karen told me not to bother. It's my idea.'
- Advice given
- Family provision risk: David is eligible to make a family provision application, a claim to the court for a bigger share. Explained what that means, and that unequal shares increase the risk. Offered a statement of her reasons to keep with the will. Margaret wants one. She repeated the advice back: 'He could go to court and ask for more, and the judge would look at what I wrote.'
- What the will covers: the bond refund is paid to her estate, so it passes under the will. A joint account with Karen would not. Margaret says she has no joint accounts.
- Observations
- Knew the day, month and where she was.
- Remembered our 2012 meeting and the old office.
- Hearing aid in, no difficulty hearing. Did not repeat herself.
- Says she takes blood pressure tablets only. No recent hospital admissions.
- Check with the facility
With Margaret's consent, spoke to the care manager, P. Nair, at 11:25am. The facility has no concerns about her memory or thinking, and no dementia diagnosis on file. Considered a medical assessment and did not get one, as there were no warning signs today. Will test again at signing.
- Next steps
Draft the will and the statement of reasons. Return to sign in the week of 20 July. See Margaret alone again and repeat the capacity questions.
That note is long for a file note and short for what it may one day have to carry. Notice that the questions are recorded, the key answers are in the client's words, and the reader can tick off each Banks v Goodfellow limb without guessing.
How long to keep wills files
Rule 14 of the Australian Solicitors' Conduct Rules allows client documents to be destroyed seven years after the engagement ends, unless there are instructions or legislation to the contrary. That general rule is a poor fit for will instructions. The file only becomes important when the testator dies, which may be decades after the engagement ended, and a challenge to the last will can put earlier wills and the notes behind them in issue too.
Original wills held in safe custody are not yours to destroy at all. For the instructions file, the cautious practice is to keep the notes of instructions, capacity observations and execution for as long as the will could be propounded or challenged, which in practice means well past seven years. Confirm the position with your insurer and law society, and write it into your retention policy so the wills files are not swept up in a routine destruction run.
Getting the note made on the day
The problem with will notes is rarely knowledge. It is that the conference ran for over an hour at an aged care home, you drove back, and there were four calls waiting. The note gets written on Friday from a page of scrawl, and the testator's exact words are gone.
Two habits help. First, take a printed question sheet built around the checklist above, so the open questions are asked in the same order every time. Second, get the full note made the same day. If instructions were taken by phone or video and your system produced a transcript, CallNote turns that transcript into a structured attendance note in your own format in about two minutes. For a bedside or home visit, you can dictate a voice memo in the car park afterwards and work from that. CallNote never records the conference and never joins a meeting. You review the draft, correct it, then publish it, which seals the note with a timestamp and checksum so any later change shows as a dated amendment. For a will file, being able to show the note has not been touched since the day it was made is worth a lot.
You can try the format with the free attendance note generator, read the general structure in how to write a legal attendance note, or see how firms use it on the for law firms page. If capacity or family conflict is likely to put the file in front of a court, are attendance notes privileged? is worth reading as well.
Common questions
What is the test for testamentary capacity in Australia?
The test comes from Banks v Goodfellow (1870) LR 5 QB 549. The testator must understand the nature and effect of making a will, understand in general terms the extent of their property, comprehend and appreciate the claims of those who might reasonably expect to benefit, and not be affected by a disorder of the mind or delusion that influences the dispositions.
What should a solicitor record when taking will instructions?
Record who arranged the appointment, who attended and who was asked to leave, the open questions asked, the testator's answers in their own words, their description of their assets and family, their reasons for the dispositions, the advice given, your observations of orientation and memory, and whether a medical assessment was considered. Make a second note at execution.
Should the client be seen alone when giving will instructions?
Yes. In Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007, Kunc J suggested that a client who is over 70, in care, or about whom there is any capacity concern should always be interviewed alone. The file note should say who was asked to leave and when, because that fact is central to any later undue influence allegation.
Is a solicitor's file note enough to prove capacity?
Not by itself. In Ryan v Dalton the solicitor had notes and a GP letter and the will still failed. A note helps most when it shows open questions directed at each part of the Banks v Goodfellow test and the testator's actual answers. Where real doubt exists, the Law Society of NSW guide recommends a formal assessment by a clinician experienced in cognitive capacity.
How long should a law firm keep a will instructions file?
Rule 14 of the Australian Solicitors' Conduct Rules permits destruction of client documents seven years after the engagement ends, but will challenges often arise decades later. The cautious practice is to keep instruction, capacity and execution notes for as long as the will could be propounded or challenged. Check your insurer's and law society's guidance.
Can software write the will instructions note for me?
It can draft it, and you stay responsible for it. CallNote takes a transcript that already exists, or a voice memo dictated after an in-person conference, and produces a structured note in your firm's format in about two minutes. It never records or joins the meeting. You review and correct the draft, then lodge it so the note is sealed and any later change appears as a dated amendment.