Demons, Brothels, and Questions of Capacity

27 FEB 2020


A recent case from the New South Wales Court of Appeal detailed how two sisters lost their fight in Court to prove that their father was suffering from insane delusions when he created a new Will. The delusions included that his daughters were running or working in a brothel, someone had kidnapped his wife and one of his daughters was possessed by demons.

With evidence provided by the father’s doctors and solicitors, the Court found that the delusions were episodic rather than continuous meaning his capacity was not lost and despite suffering from such delusions, he still had capacity to make his Will. The Judge also made a point of noting that even with a diagnosis of dementia, a person may still hold the capacity to make a Will.

However, a similar case, detailed how the sister and niece of a deceased lady were successful in having the most recent Will (New Will) of the deceased overturned and the earlier Will (Earlier Will) upheld as the deceased’s last valid will. The Court found that the deceased was unduly influenced by other family members when her New Will was made and that the deceased did not have the appropriate capacity to make the New Will.  There were no allegations of delusions and the provisions in the New Will were not considered unreasonable, however the Court was satisfied that the deceased was lacking capacity and unduly influenced by other family members at the time the New Will was signed.   

The differences in the two cases are in the details surrounding capacity at the time of executing the Will. In the first case, the Court held that although the deceased did suffer from delusions they were not present at all times and that regardless of these delusions, they did not amount to a lack of capacity at the time of executing the Will.

The second case highlights the fact that the deceased had no understanding of the nature of gifting her Estate, coupled with the fact that there was undue influence in the execution of the Will. The Court held that this meant that at the time of executing the Will, the deceased did not have capacity to understand the Will and therefore the New Will was found to be invalid.

For a solicitor, assessing a client’s capacity is one of the first steps required when commencing legal work in Estate Planning.  You may not even have thought about this as an issue when organising your own Wills or when your loved ones are creating their own documents.  Many people also don’t realise that a Will can be challenged on the issue of capacity in Court.

The UK case Banks v Goodfellow (1870) provides that a valid Will may only be made by a person of sound mind, memory and understanding or by a person of unsound mind during a lucid interval.

A person may lack capacity, resulting in the definition above, due to mental illness, insane delusions or a physical illness affecting the brain, just as a few examples.

The important point to make note of is that the question of capacity is a legal question not a medical one, therefore medical evidence alone cannot support a finding that a person lacks the capacity to make a Will for soundness of mind.  The question is a legal one as the mental disease must affect the rational disposition of the testator’s estate.  In some cases, however, like the case about the father’s delusions detailed above, it may be prudent to have a medical practitioner attest the Will or issue a certificate as to the mental competence of the testator to assist in answering a complex legal question such as capacity.

If you have any questions or would like to make an appointment to discuss this issue or your own Estate Planning or issues surrounding an Estate, please contact the Partner in the Estate Planning Department, Krystle Wolthers on (02) 4626 5077 or at

The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.

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