How can a person lacking testamentary capacity change their Will?

We aim to deliver Just, Redemptive Outcomes®

It is well known that a person with capacity can at any time change their Will. However, what happens when a Will maker wishes to change their Will but subsequently loses testamentary capacity? In such instances, the Supreme Court has the power to authorise a Will to be made, altered or revoked for a person without testamentary capacity. VMH v SEL[1] is a recent decision of the Supreme Court of Queensland which saw the making of such an order.

The Story

CEK was a 91 year old lady. Her previous Will allowed for substantial assets to be left to a former carer and a friend whom were suspected of mishandling her funds. After becoming aware of this, CEK expressed her wish that her nephew (“the applicant”) instead inherit her estate of $2.4million.

On 12 April 2016, the applicant filed an application with the Supreme Court seeking an order authorising a new Will to be made on behalf of CEK. The two respondents were CEK’s nieces.

The Court’s discretionary power under the Succession Act

Section 21 of the Succession Act 1981 (Qld) gives the Supreme Court the discretionary power to make an order authorising ‘a will to be made, or altered, in the terms stated by the court’ or authorising ‘a will or part of a will to be revoked’ on behalf of a person without testamentary capacity.

The issue

Whether the court should exercise its discretionary power to make an order authorising a Will for CEK to be made and, if so, what the terms of the Will should be?

The Decision

The Court referred to the decision in Re Fenwick[2] which outlined 2 questions relevant to deciding whether an order should be made on behalf of a person who lacks capacity:

  1. Has the incapacitated person actually stated a particular testamentary intention?
  2. Would the person have held that intention if they possessed testamentary capacity?

(at [121]).

Whether an order should be made?

The Court held that it was clearly inappropriate for substantial gifts be left to CEK’s former carer and friend following their mishandling of her funds. For this reason, the Court held that it was appropriate for a new Will be authorised on behalf of CEK.

Considerations relevant to deciding the terms of the Will:

  • What was CEK’s testamentary intention?

CEK’s present desire was for her estate to be left to the applicant. The Court however was weary of finding in favour of this. In Jackson J’s view, CEK had become ‘plainly dependent on the applicant’ (at [142]). The applicant’s involvement in CEK’s affairs showed no concern of ensuring that she did not become so dependent on him. His actions reflected his dominance and influence over CEK to the exclusion of his sister (the respondent). An example of such behaviour was evidenced in his attempts to exclude his sister (the respondent) from CEK’s affairs, even though she had demonstrated equal support and involvement in CEK’s life. In fact, his Honour said that it was almost a ‘self contradiction’ for the applicant to ask that a new Will be made given CEK’s incapacity and then ask for her intentions to guide the terms of the new Will. CEK’s desire was rather ‘an actual intention formed by a person without the capacity to manage their own affairs or at least to make their own Will or power of attorney’ (at [126]). The Court was therefore of the opinion that less weight should be given to CEK’s intention.

  • Would CEK have held this intention if she had capacity?

There was little doubt that if CEK had capacity she would have changed her Will having knowledge that the previous beneficiaries were stealing from her. However it was difficult to ascertain what CEK would have then done with her Will.  She did not have a close relationship with her family having only recently reconnected with her family after 39 years of estrangement. However given that other family members had not shown an interest in CEK’s estate, the Court was satisfied provision should not be made other than for the applicant and respondents.

Taking into account the applicant’s influence over CEK, the Court decided to discount CEK’s wishes significantly and make allowances for the respondents. The Court concluded that  the applicant should receive 40% and the respondents 30% each in the residue of the estate.


Whilst the current intentions of incapacitated persons Will be taken into account in such applications, it is not always appropriate that such wishes be honoured as such persons can be vulnerable to influence. The Court’s discretion under s 21 of the Succession Act acts as an important mechanism of ensuring that the particulars of an incapacitated person’s Will are dealt with appropriately.

For more information regarding testamentary capacity

Please contact our Business Development Team or call us on (07) 3252 0011 to book an appointment with one of our Estate & Elder Lawyers today.

[1] [2016] QSC 148.

[2] (2009) 76 NSWLR 22, 54-55.

This article was written by Andrew Lind (Director).