Making a will is one of the most important legal steps a person can take, yet the window to do it can close without warning. A diagnosis, a fall, a sudden decline in health: each of these can raise questions about whether a will made around that time is valid. In Queensland, the answer turns on a concept called testamentary capacity, and getting it right matters for the person making the will and for the family left to deal with it.
Testamentary capacity is the mental capacity a person must have to make a valid will, according to the Queensland Public Trustee. It is not an all-or-nothing test tied to age or diagnosis. A person with a medical condition can still have capacity at the right time and in the right circumstances. What matters is the state of mind at the moment the will is made.
As a Springfield law firm, we help clients across Greater Springfield and Ipswich with wills and estate planning.
Here is how testamentary capacity works in Queensland, and why it matters when a will is made or later challenged.
Key takeaways
- Testamentary capacity is the mental capacity needed to make a valid will.
- Every adult is presumed to have capacity unless proven otherwise.
- A solicitor's capacity assessment protects a will from later challenge.
This article is general information only and is not legal advice. Every situation is different, and you should speak with a solicitor about your own circumstances.
What does testamentary capacity mean in Queensland?
Testamentary capacity is the mental capacity a person must have to make a valid will, according to the Queensland Public Trustee. A person who dies without a valid will dies intestate, meaning Queensland's succession rules decide who inherits rather than the person's own wishes.
The general rule, confirmed by Queensland Law Society guidance, is that every person is presumed to have capacity. That presumption protects a will-maker: the starting point is always that the will is valid, and a person challenging it carries the burden of showing otherwise. Capacity is also decision-specific. Whether a person has the capacity to make a will depends on the nature of that decision, its complexity, the support available and the timing, according to the Queensland Government's guidance on understanding capacity.
Capacity can also change over time. A person may have capacity on one day and not on another, or may have capacity in the morning and not in the afternoon. That is why timing matters so much, and why a medical assessment obtained close to when the will is signed can be important evidence if the will is later questioned.
What does Queensland's Succession Act say about making a valid will?
Under Queensland's Succession Act, a will must be in writing and signed, with the signature made or acknowledged before two or more witnesses present at the same time. A document not signed in that way can still form a will if the Court is satisfied the person intended it to be their will.
The Act also deals with situations at the edges of capacity. A will made by a person under 18 is generally not valid, unless it was made in contemplation of marriage, while married, or under a Supreme Court order. The Court may also authorise a will for a living person who lacks testamentary capacity, giving that person a path to a valid will even when full capacity is not present.
Undue influence is a separate concern. The Queensland Public Trustee describes it as a situation where a person is intimidated, pressured or influenced and cannot freely decide, for example where someone is pressured to make a will in a particular way. A will made under undue influence may also be challenged, even where the will-maker had capacity in the technical sense.
When does a solicitor's role in assessing capacity matter?
As a general rule, a solicitor cannot act on instructions from a client who lacks the capacity to give them, according to Queensland Law Society guidance. That is not just a professional obligation: it is also what protects a will from being challenged later.
Where a solicitor has genuine concerns about a client's capacity, the Queensland Law Society says that confirmation of capacity from a medical assessment is evidence that can be used to meet a later challenge. A GP, specialist or lawyer can carry out a formal assessment, according to the Queensland Government's guidance on understanding capacity.
"A medical assessment obtained close to the time a will is signed can be the most important piece of evidence available if the will is later challenged."
Jade Kickbusch, Principal, Brookwater Legal
In practice, this means that making a will sooner rather than later, while capacity is clear and the evidence is straightforward, is the most effective way to protect it. A will made under medical scrutiny, with contemporaneous notes from the solicitor and the treating doctor, is far harder to challenge than one made without that record.
What makes a will harder to challenge in Queensland?
Several factors contribute to a will that is more resilient to a capacity challenge.
When capacity is clear, a solicitor records it:
- › Contemporaneous notes: a solicitor who takes detailed notes of the meeting, what questions were asked and how the client responded, creates a record that can be used in court.
- › Medical assessment: a capacity certificate or letter from a treating GP, obtained before or around the time the will is signed, provides independent evidence of the client's state of mind.
- › Consistent instructions: a will that reflects what the person has said consistently over time is harder to cast as the product of an impaired mind.
- › Independent legal advice: the Queensland Government recommends independent legal advice before making an enduring power of attorney, and the same principle applies to a will where family members may have competing interests.
Where capacity is in doubt, QCAT or the Supreme Court can make a formal declaration, according to Queensland Government guidance. That pathway exists precisely because the law recognises that capacity questions are sometimes genuinely contested and need an authoritative answer.
How does a solicitor help with making a will in Queensland?
Step 1: Talk to us
Get in touch and we'll explain how the process generally works and what the next steps look like.
Step 2: We take your instructions
We take time with the instructions meeting, asking open questions and recording the client's responses. Where there are any concerns about capacity, we raise them early and, where appropriate, we recommend a medical assessment before the will is signed.
Step 3: We prepare the will
We prepare the will in plain language, reflecting the client's clear instructions. We explain each clause and confirm the client understands and agrees with every part of it before signing.
Step 4: We oversee the signing
We supervise the signing and witnessing of the will in accordance with Queensland's Succession Act requirements, and we keep a file note of the process that can serve as evidence if the will is ever questioned.
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When does capacity not apply in the usual way?
Not every will-making situation follows the standard path. Several circumstances change what capacity means in practice.
Situations where the standard capacity rules shift:
- › Under 18: a person under 18 cannot make a valid will unless they are married, are making a will in contemplation of marriage, or have obtained a Supreme Court order, under Queensland's Succession Act.
- › Capacity fluctuates: a person whose capacity changes day to day or hour to hour may still make a valid will during a period of clarity. The timing of the appointment and the quality of the evidence at that moment are what matter.
- › No capacity at all: the Supreme Court may authorise a will for a living person who entirely lacks testamentary capacity, under Queensland's Succession Act. That process allows the court to ensure the person's known wishes and circumstances are reflected.
- › Pressure from family: where a person has capacity but is being pressured to make a will in a particular way, the resulting document may be challenged on the ground of undue influence, according to the Queensland Public Trustee, even if the capacity test is technically met.
What happens if a will is challenged on capacity grounds in Queensland?
A challenge to a will on capacity grounds is a Supreme Court matter, heard in the Wills and Estates List, according to Queensland Courts. The person bringing the challenge must overcome the presumption of capacity that attaches to every adult will-maker.
The Queensland Law Society notes that the general rule is that a person is presumed to have capacity, and that confirmation of capacity from a medical assessment is evidence available to meet a challenge. That means the quality of the evidence gathered at the time the will is made is often what decides the outcome of a challenge years later.
A challenge on the ground of undue influence is a separate path. It does not require showing that the will-maker lacked capacity; it requires showing that their free choice was overridden. Both grounds can be raised together, and both are heard in the Wills and Estates List.
Where a challenge succeeds and the most recent will is found invalid, Queensland's succession rules may apply as if no valid will existed. An earlier will may also become relevant. A solicitor can advise on what happens in a particular situation.
Frequently Asked Questions
What is testamentary capacity in Queensland?
Testamentary capacity is the mental capacity a person must have to make a valid will, according to the Queensland Public Trustee. A person who dies without a valid will dies intestate and Queensland's succession rules decide who inherits.
Does a diagnosis of dementia mean a person cannot make a will in QLD?
Not automatically. Every adult is presumed to have capacity, according to the Queensland Government, and capacity depends on the decision, its complexity and the timing. A person with dementia may have capacity at a particular moment, which is why the timing of the appointment and contemporaneous evidence matter.
What are the signing requirements for a valid will in Queensland?
Under Queensland's Succession Act, a will must be in writing and signed, with the signature made or acknowledged before two or more witnesses present at the same time. A witness generally should not benefit under the will.
Can a Queensland court authorise a will for someone who lacks capacity?
Under Queensland's Succession Act, the Supreme Court may authorise a will for a living person who lacks testamentary capacity. This allows the court to ensure the person's known wishes and circumstances are reflected in a valid document.
What is undue influence, and how does it differ from a lack of capacity in Queensland?
Undue influence is where a person is intimidated, pressured or influenced and cannot freely decide, according to the Queensland Public Trustee. A will can be challenged on that ground even where the will-maker had testamentary capacity, making it a separate path from a capacity challenge.
Do I need a solicitor to make a will in Springfield or Ipswich QLD?
A solicitor is not required by law, but the Queensland Law Society notes that where capacity may be in question, a solicitor's contemporaneous records and advice to obtain a medical assessment are the evidence that protects a will from later challenge. Our wills and estates solicitors help clients across Springfield and Ipswich with this process.
Where are capacity challenges to a will heard in Queensland?
Capacity and undue influence challenges are heard in the Supreme Court of Queensland's Wills and Estates List, according to Queensland Courts. A solicitor can advise on the process and what evidence is relevant.
Your Next Steps
Testamentary capacity is not something that looks after itself. A will made without a contemporaneous capacity record is always more vulnerable than one made with the evidence in place. For families across Springfield and Ipswich, the practical advice is straightforward: make or review the will now, while the evidence of capacity is clear and easy to gather, rather than waiting until the circumstances become complicated.
Every wills and estates matter is different, and that's exactly why it's worth a conversation. Make an appointment with the Brookwater Legal team or call (07) 3437 8555.
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External Resources
- Queensland Public Trustee - Glossary of terms
- Queensland Public Trustee - About wills
- Queensland Government - Understanding capacity to make decisions
- Queensland Law Society - What should I do if I have doubts about my client's capacity?
- Queensland Legislation - Succession Act 1981
- Queensland Courts - Apply for a grant of administration
Brookwater Legal · This article contains general information only and does not constitute legal advice. It does not take into account your individual circumstances. You should obtain legal advice about your own situation before acting on anything in this article. Liability limited by a scheme approved under Professional Standards Legislation.
