This piece covers the capacity assessment. For the full will instructions note, see file notes for wills and estates.
The legal test: Banks v Goodfellow, as applied in Australia
Testamentary capacity is still measured against Banks v Goodfellow (1870) LR 5 QB 549. The Law Council of Australia's Best Practice Guide for Legal Practitioners on Assessing Mental Capacity (June 2023) restates it this way. When preparing a will, the practitioner should be satisfied that the will-maker:
- Is aware, and appreciates the significance, of the act in the law they are about to undertake.
- Is aware, at least in general terms, of the nature, extent and value of the estate they can dispose of.
- Is aware of those who may reasonably be thought to have a claim on them, and the basis for and nature of those claims.
- Has the ability to evaluate and discriminate between the respective strengths of those claims.
Three points from the same guide shape the note. First, there is no automatic presumption of testamentary capacity. A rebuttable presumption arises once the will is shown to be regular on its face and duly executed, and if the challenger raises a suspicion, the person propounding the will must prove capacity. Second, capacity is task, time and content specific: a client can have capacity for a simple will and not a complex one, or on a good morning and not a bad afternoon. Third, the court must also be satisfied the will-maker knew and approved the contents, and the guide says the best way to show that is to read the will to them.
So the note has to carry the evidence for each limb, on that day, for that document. 'Client had capacity' is a conclusion. A court wants the material behind it.
Whose job is the assessment?
The Law Society of NSW guidance Communicating with health professionals when assessing a client's testamentary capacity (November 2021) says responsibility for assessing whether a client has capacity to make a will rests first and foremost with the solicitor rather than any health professional, and only the court can finally decide it. The Law Council guide agrees: because the tests are legal tests, a practitioner cannot delegate or abrogate that responsibility.
The NSW guidance adds a point that often gets missed. If, with or without clinical input, you form a sound view that there is an arguable case the client has capacity, you should prepare the will rather than deprive them of the chance to make one, and a referral should not unduly delay it. The note also records why you decided to proceed.
Red flags that call for a fuller assessment
In Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007 it was said that a solicitor should always consider capacity and the possibility of undue influence, if only to dismiss it in most cases. The Law Council guide lists circumstances that point to a possible challenge. If any is present, run the full process below and say so in the note:
- A long-standing diagnosis of dementia.
- A current or recent hospital admission, or a significant medical condition.
- Medication that may affect cognition.
- The client's attorney has already been exercising their authority.
- The client is over 70, cared for by someone, or lives in a nursing home or similar facility.
- Any other reason for concern about capacity.
Add the signs you know from practice: a relative books the appointment and wants to sit in, a recent change of solicitor, a sharp departure from a long-settled will, someone else doing the talking. None proves anything. Each is a reason to slow down and write more.
Running the capacity interview
Kunc J's guidelines in Ryan v Dalton and the law society and LPLC material that followed point to the same method.
- See the client alone. A relative can help with arrival, then waits outside. Any interpreter should be independent of the family.
- Use open questions. 'Tell me about your family.' 'What do you own?' Reading out a list and waiting for a nod tests very little.
- Ask why. Get the reason for each significant choice, especially a change from an earlier will or an unequal division. It may seem unfair to others. What matters is that it is the client's own and not the product of a delusion.
- Test recall of your advice. Ask the client to explain back, in their own words, what you told them about family provision risk or assets outside the estate.
- Ask about concerns. Ask the client, and with consent a carer or facility, whether there is reason to worry about memory or decision-making.
- Repeat at signing. Ask the key questions again when the client signs, and read the will to them.
Some firms also video-record the conference with the client's consent. In The Will and Estate of Kalliopi Siapantas [2023] VSC 125, Gorton J relied on a video of the solicitor going through the will with the elderly will-maker and witnessing her sign it, alongside a neuropsychiatrist's assessment obtained before execution, and granted probate. Recording is a decision for your firm and client, and state listening devices laws apply: see is it legal to record calls in Australia. A written note made the same day is still the core record.
When to get a medical opinion, and the 'golden rule'
The so-called golden rule comes from an English case, Kenward v Adams (1975), where Templeman J said that where a will-maker is aged or has been seriously ill, the will should be witnessed or approved by a medical practitioner who satisfies themselves of capacity and records their examination and findings. The English Court of Appeal later treated it as a rule of solicitors' good practice rather than a rule of law: Simon v Byford [2014] EWCA Civ 280. Following it does not prove capacity, and ignoring it does not prove incapacity.
The Law Council guide says a medical opinion will often be the appropriate first step in resolving a doubt about capacity, that it should generally come from a suitable medical expert, which is generally not a GP, and that screening tools such as the Mini Mental State Examination (MMSE) are not reliable tests of capacity. The Law Society of NSW guidance is more flexible: for a straightforward will and estate the client's GP may be appropriate, while pre-existing mental health conditions or a complex estate may call for a specialist such as a geriatrician, psychogeriatrician, psychiatrist or neuropsychologist.
What the referral letter should say
A general request for a report on 'mental capacity' can come back answering whether the client can live at home. The Law Society of NSW guidance says the referral letter should set out:
- The client's background and why they contacted you.
- The purpose of the referral: the legal task being considered.
- The legal test for that task (set out the Banks v Goodfellow limbs).
- Any known medical information.
- The client's social and living circumstances, including the general size and complexity of the estate.
- The client's values and preferences, if known.
Ask for the clinician's qualifications, how long and how often they have seen the client, whether anything in the client's history, treatment or medication is likely to impair their ability to remember, reflect and reason, any prognosis, and the basis for the opinion, including how any MMSE, MoCA, RUDAS or ACE III results helped. A bare statement that the client is 'of sound mind' is unlikely to be enough (the guidance cites Metzner v Metzner [2021] NSWSC 1336). Get the client's written authority for the referral and keep it on file.
Undue influence: why you take instructions alone
In probate, undue influence means actual coercion. Persuasion short of coercion is not enough, there is no presumption of it in any relationship, and the person alleging it must prove it. The ALRC summarised the position in Elder Abuse: A National Legal Response (Report 131, 2017), drawing on Wingrove v Wingrove (1885) 11 PD 81: a person who is very weak may be coerced by very little pressure.
Because it is hard to prove, challengers often run it alongside capacity and knowledge and approval, and all three turn on the same facts: who arranged the appointment, who was in the room, who did the talking. A beneficiary who arranged or prepared the will is a classic suspicious circumstance. Record, in a line or two each:
- Who booked the appointment and who brought the client.
- Who was present at each stage, and when anyone left.
- That the client gave the instructions alone, in their own words.
- Whether any beneficiary supplied drafts, lists or instructions beforehand.
- Whether anyone had suggested the changes, and the client's answer.
What the capacity file note must record
LPLC recommends two records: a note of the questions asked and the answers given, and a separate note of your opinion on capacity with reasons. The table maps each item to the issue it answers later.
| Record | What to write | Why it matters later |
|---|---|---|
| Date, times, place, who attended | Start and finish time; home, hospital or facility visits noted | Contemporaneity, length of the assessment |
| Red flags present | Age, care setting, diagnosis, admissions, medication | Shows you turned your mind to capacity (Ryan v Dalton) |
| Seen alone | Who left, when; interpreter's name and independence | Undue influence, knowledge and approval |
| Limb 1: nature of a will | Question asked and the client's answer, verbatim where possible | Banks v Goodfellow limb 1 |
| Limb 2: estate | the client's unprompted description, rough values, gaps | Limb 2 |
| Limb 3: claims | Family and others named by the client; anyone omitted and why | Limb 3 |
| Limb 4: weighing claims | the client's reasons for each disposition in their words | Limb 4, delusion, family provision |
| Changes from earlier will | Whether the client recalled it, what changed, why | Suspicious departures |
| Advice and recall | Advice given and the client's explanation of it back to you | Understanding, knowledge and approval |
| Enquiries of others | Carer, facility or GP spoken to, with consent, and what they said | Independent evidence |
| Medical opinion | Whether sought, from whom, and why or why not | Shows a considered decision |
| Your opinion and reasons | Your view on each limb and the reasons | The solicitor's assessment the court will test |
| Execution | Questions repeated, will read to the client, witnesses | Capacity at execution, knowledge and approval |
For a firm-wide check on file note quality, run your template through the law firm file note compliance checklist.
Worked example: capacity file note with a referral
The client and every detail are invented. This one has real red flags, so it shows the referral decision. The limbs are the four parts of the Banks v Goodfellow test above.
- Red flags
- Discharged from hospital three weeks ago after a urinary tract infection. Doreen said she was 'a bit muddled' at the time.
- Her son Gavin holds her enduring power of attorney and has been paying her bills since August.
- Gavin booked the appointment and was there when the solicitor arrived. Asked him to wait outside at 2:15pm, and he left. Doreen was alone from then until the end.
- Limb 1: what a will is
Asked what a will is for. Doreen: 'It's who gets the house and the money after I die.' Asked when it takes effect. Doreen: 'When I'm gone, not before.'
- Limb 2: what she owns
Asked what she owns. Doreen named this house, 'paid off', and an account at the credit union, 'maybe forty thousand, Gavin would know'. She could not recall the shares in her 2015 will. When asked, she said: 'Oh, the Telstra ones, I think Ron sold some.' Gaps noted.
- Limb 3: who has a claim on her
Asked about her family. Two sons, Gavin (in Wagga) and Stephen (in Darwin). Five grandchildren. She named four, and remembered the fifth when asked about Stephen's children.
- Limb 4 and her instructions
She wants the house to go to Gavin and the rest of the estate split equally between her two sons. Her 2015 will split everything equally. Asked why the change. Doreen: 'Gavin's done everything since Ron died. Stephen's got his own place.' Asked if anyone suggested it. Doreen: 'Gavin said I should do what I want.'
- Advice given
Told Doreen that Stephen is eligible to make a family provision application, a claim to the court for a bigger share of the estate, and that an unequal gift increases that risk. She repeated it back: 'Stephen could go to court and say it's not fair.' Asked again 10 minutes later, she hesitated, then got there.
- What the solicitor observed
- Knew where she was and the month, but not the date.
- Told the story about Ron's funeral twice.
- Good hearing. No interpreter needed.
- Tired by 3:15pm.
- Call to her GP
With Doreen's consent, rang her GP, Dr A. Lee, at 3:50pm. Dr Lee confirmed a recent delirium, resolved now in her view, and no dementia diagnosis. She will not give a capacity opinion herself and suggested a geriatrician.
- Opinion on capacity
There is an arguable case that Doreen has capacity. Limbs 1 and 3 are clear. Limb 2 is partial: she has a general grasp only. Her reasons under limb 4 are her own and rational. The concerns are the recent delirium, Gavin's use of the power of attorney, and that the son who benefits booked the appointment.
- Next steps
- Doreen agrees to an assessment by a geriatrician. Her signed authority is on file.
- The referral letter will set out the Banks v Goodfellow test, the size of the estate, the recent hospital stay and how the 2015 will divided things.
- Draft will prepared now, so the wait for the report does not stop Doreen making her will.
- Return for signing after the report. See Doreen alone again, read the will to her, and ask the questions for all four limbs again.
It records the questions, answers, gaps and reasoning without overstating. A reader years later can see why the solicitor proceeded and why a specialist was asked.
Getting the capacity note made the same day
The hard part is timing. A home visit ends, there is a drive back, and the note gets written days later from scrawl with the client's exact words lost. Take a printed question sheet built around the four limbs, and make the note the same day.
If instructions were taken by phone or video and your platform produced a transcript, CallNote turns it into a structured attendance note in your firm's format in about two minutes. After a home or hospital visit, dictate a voice memo in the car instead. CallNote never records the conference and never joins a meeting. You review the draft, then publish it, which seals the note with a checksum so any later change shows as a dated amendment. Try the format with the free attendance note generator, browse the file note template library, or see the law firms page.
Common questions
Who decides whether a will-maker has testamentary capacity?
The solicitor decides whether to act on the instructions, and only a court can finally decide capacity. The Law Council of Australia's 2023 capacity guide and the Law Society of NSW's 2021 guidance both say the solicitor cannot hand that judgment to a doctor. A medical opinion can support or weaken the solicitor's view.
Do I need a doctor's report before preparing a will for an elderly client?
Not in every case. The golden rule from Kenward v Adams (1975) is a rule of solicitors' good practice rather than law (Simon v Byford [2014] EWCA Civ 280). A medical opinion is sensible where there are real red flags, such as a dementia diagnosis, recent hospital admission or cognitive medication. The Law Society of NSW guidance says a referral should not unduly delay the will where there is an arguable case the client has capacity.
Can a GP give a testamentary capacity opinion?
Sometimes. The Law Society of NSW guidance says a GP may be appropriate for a straightforward will and estate, with a specialist for complex estates or mental health conditions. The Law Council's 2023 guide says the opinion should generally come from a suitable medical expert, which is generally not a GP.
What should a testamentary capacity file note include?
Date, time, place and attendees; red flags; that the client was seen alone; the questions asked for each Banks v Goodfellow limb and the answers in the client's words; reasons for each disposition; whether the client could explain your advice back; enquiries of carers or doctors; whether a medical opinion was sought; and your opinion on capacity with reasons.
Why should a solicitor take will instructions alone with the client?
Because undue influence, capacity and knowledge and approval challenges all turn on who was in the room. In Ryan v Dalton; Estate of Ryan [2017] NSWSC 1007, Kunc J said the client should always be interviewed alone, with an interpreter who is ideally not a family member or proposed beneficiary. Record who left the room and when.
Is reading the draft will back to the client enough to show understanding?
No. Reading the will to the client is the recommended way to show knowledge and approval at signing, but it does not test capacity, and 'Is that right?' after each clause invites a nod. Use open questions about family, assets and reasons, and record the client's own answers.