Dementia does not necessarily mean a lack of testamentary capacity

Case Note: Croft v Sanders [2019] NSWCA 303

(This article is part of our Deceased Estate and Will disputes Series)

The Facts

This New South Wales Court of Appeal case involved two appellants who were two of the six daughters of the late Warwick Croft, who passed away in 2016. The daughters were appealing the order for a grant of probate of Mr. Croft’s October 2013 Will. The Will in question set out that five of the deceased’s daughters were to receive $40,000 each, whilst the final daughter (one of the deceased’s executors) was to receive the balance of the estate, which was worth approximately $3 million.

The appellants claimed that their father had lacked testamentary capacity at the time when he had made the Will in 2013, citing cognitive impairment due to dementia and hallucinations as evidence. They also noted importantly that an earlier Will had left the testator’s substantial assets in equal shares to his daughters.

The solicitor who prepared the Will had taken detailed file notes during his attendance with Mr. Croft and noted that it was his usual practice to obtain a letter from the testator’s treating doctor in cases where the capacity of the individual was questionable. The solicitor was previously acquainted with the testator through attending the same Church.

An array of lay evidence was put forward to corroborate that Mr. Croft’s underlying dementia did not affect his testamentary capacity at the time at which the Will was prepared.

The Decision

The Court of Appeal dismissed the appeal on the basis that the testator’s hallucinations and delusions were likely episodic and that, on the basis of probabilities, he did not experience them on giving his Will instructions. The Court also considered the fact that medical evidence showed some underlying cognitive impairment, while legal practitioner and lay evidence established the testator’s ability to weigh the claims to his estate and that his condition did not deprive him of testamentary capacity.

Further, the primary judge’s conclusions were not drawn from consideration of whether the Will was rational from the testator’s perspective, but rather whether testamentary capacity existed.

The legal test for capacity requires the testator understands the nature and effect of the document they are making; the extent of the property of which he is disposing; is able to comprehend and appreciate the claims to which he ought to give effect; and that no disorder of the mind shall influence his will in disposing of his property.

The Court of Appeal dismissed the appeal with costs on the basis that it was the testator’s wishes to give $40,000 to each of his five daughters.


This case highlights a number of important lessons, namely:

  1. The importance of maintaining an up-to-date Will;
  2. A dementia diagnosis, though seeming to indicate that an individual’s reasoning is impaired, does not necessarily mean that they lack testamentary capacity;
  3. It is important that your estate planning / Will making solicitor make a careful assessment themselves of the testamentary capacity of the Will maker; and
  4. Even if you are suffering from some medical impairment it may not be too late to update your Will, but it is best that this be attended to soon rather than later.

This case bore similar facts to the Victorian Court of Appeal case Kantor v Vosahlo [2004] VSCA 235. In Kantor v Vosahlo, the Court examined whether a testator who suffered dementia had testamentary capacity. The solicitor who drew up the Will was a long-term friend of the testator and was able to give strong evidence that the Will was prepared during a lucid interval, in which the testator had full capacity to explain and give coherent reasons the changes to her Will.

In this case, it was in part due to the solicitor’s diligence in keeping detailed file notes and his requirement of obtaining medical advice on capacity that meant that the testator’s Will could be upheld.

The law that was applied in this case is the same as the law in Queensland.

If you have any questions regarding capacity and the making of a Will by a person with dementia, contact us

Our Brisbane Will making lawyers are available to assist you in updating your Will even if you are confined to home or hospital. Call us to find out how we can help.

Author: Andrew Lind

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