Do You or Does Your Loved One Have the Testamentary Capacity to Sign a Will?

The recent Supreme Court of Queensland case of Farrell v Boston [2016] QSC 278 demonstrates two key principles of succession law. Firstly, a person must have testamentary capacity in order to execute a valid Will. Secondly, any mistake of fact claim must be sufficiently proved in order for a court set aside a Will or former grant of probate.

Facts of the Case

The 1984 Will

Mrs Farrell executed a Will in 1984 while her second husband, Duane Farrell, was still alive. In the Will, Mrs Farrell disposed of her property:

  • To her second (and current) husband, Duane Farrell, her entire estate;
  • Should her current husband pre-decease her, legacies (gifts of money) of $40 000.00 to each member of her first husband’s family, with the residue (remainder) over to her brother, John Genn.

Her then husband had drafted his Will in a similar fashion.

The 2007 Will

In 1984, however, Mrs Farrell’s second husband died, followed by her brother in 2007. Both her husband and brother pre-deceasing her, Mrs Farrell instructed her nephew, Kelvin Genn (John Genn’s son) to contact the law firm Steindls to have her instructions taken for a new Will. This was so she could gift her estate to new beneficiaries, which included her first husband’s family.

In accordance with this Ms McIntosh, the Steindl’s estates law clerk, visited Mrs Farrell’s nursing home, took instructions and then created a draft Will to which Mrs Farrell required changes. Weeks later, Kelvin Genn took Mrs Farrell to Steindls’ office to review the amended version, where Mrs Farrell subsequently signed her new Will in the presence of two women.

The applicant’s claims

The applicant claimed that in 2013 Mrs Farrell gave to him a new 2013 Will which had been obtained from a newsagent and witnessed by two people he did not know. He argued that this Will should have been considered before granting probate to the 2007 Will.  The 2013 Will had two distinct differences from Mrs Farrell’s previous Wills. These were:

  • Instead of gifting her estate to her first husband’s family, Mrs Farrell gifted her estate to the relatives of her second husband and her brother-in-law; and
  • The Will was signed with the deceased’s full name ‘Erris Farrell’ instead of ‘E. Farrell’ in her previous Wills. The Court however noted that the handwriting was shakier albeit the same as in the former Wills.

While the applicant did not wish to submit the new Will, he argued that for the Court to grant probate to the 2007 Will amounted to a mistake of fact. This warranted having the grant set aside. The applicant also submitted that as Steindls failed to produce photographic evidence of Mrs Farrell, the court should draw the inference that the woman who gave instructions to the law clerk was an imposter, and probably the sister of Mrs Farrell’s first husband.

Was the 2007 Will Valid?

  • The Court dismissed the notion that Mrs Farrell’s Will was signed by an imposter. In order for this to occur, the alleged imposter would have had to replace Mrs Farrell not only at Steindls’ office, but also at the nursing home on previous occasions. Essentially, there was no evidence to support the applicant’s claim;
  • The dispositions in the 2013 Will were inconsistent with the 1984 Will. The 2013 Will’s disposition was entirely to Duane Farrell’s family. The 1984 Will and 2007 Will, however, were consistent in disposing of Mrs Farrell’s estate to her first husband’s family should her second husband and brother pre-decease her;
  • The court noted that it was possible that the 2013 Will was in fact created by Mrs Farrell, however, resident patient progress notes from 2013 from Mrs Farrell’s nursing home noted she had ‘dementia and confusion’ and ‘describ[ed] incidents of her aimlessly wandering, her inability to understand instructions and her profound deafness.’ A report was also adduced to court by Dr McSweeney who treated Mrs Farrell during 2010 to 2015. In the report Dr McSweeney noted that Mrs Farrell suffered from dementia and hearing loss which made communication with her difficult. As such, the Court ruled that that it was impossible for Mrs Farrell to have the requisite soundness of mind (and therefore testamentary capacity) to understand what she was doing if she signed a new Will in 2013.

As such, the Court upheld the 2007 Will.


In this case, despite the accusations of fraud, the main issue addressed by the Court was the testamentary capacity of Mrs Farrell. A person who suffers from an infirmity of the mind can still sign a Will if it can be established that at the time of execution he or she was not afflicted by unsoundness of mind, memory or understanding.[1] This is called a ‘lucid interval’.[2] The best practice to ensure that a Will is admitted to probate when signed in these circumstances is to obtain a certification from a medical professional that the will-maker has the testamentary capacity to make the Will. Additionally a lawyer witnessing a Will is able, from their experience, to ask a number of questions to seek to be satisfied about Testamentary capacity, and make a detailed note about being so satisfied.

This article was written by Andrew Lind (Director) and Lornagh Howarth (Law Clerk).

[1] Banks v Goodfellow (1870) LR 5 QB 549, 565.

[2] See Timbury v Coffee (1941) 66 CLR 277.

2 Replies to “Do You or Does Your Loved One Have the Testamentary Capacity to Sign a Will?”

  1. Yes absolutely. Please contact our office on (07) 3252 0011 or email:

    One of our client engagement officers will explain to you our process and initial consultation process. We look to hearing from you Dave.

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