Wills and estates: Succession law and testamentary capacity

Abstract

This chapter examines testamentary capacity-that is, the legal concept of whether or not a person has the ability to make a binding will. It sets out the development of the legal concept of testamentary capacity to its position today, as well as describing the criteria for determining whether or not a person has, or had at a particular time, testamentary capacity, as set out in the well-known judgment of Banks v Goodfellow (1870) LR 5 QR 549. It also details the concept of the “statutory will,” which allows the Supreme Court of each state to authorize a will to be made, varied, or revoked on behalf of a person without capacity. Each of these matters is considered with an emphasis upon the role of the medical practitioner in providing his or her opinion regarding capacity and other matters.