Dunne v Christie [2025] NSWSC 968 (27 August 2025) Slattery J
Applicable Legal Principles
99. Two main legal issues present for consideration in this case: whether Brendan had the requisite testamentary capacity at the time of the Last Note for it to constitute his will, and whether in all circumstances the Court should infer that the deceased intended the Last Note document to be his will.
100. Testamentary Capacity: A testator has testamentary freedom to dispose of their property which they were entitled to at the time of death: Succession Act, s 4. But there is an implied requirement that the testator has the legal capacity to do so. Whether a testator has capacity is determined by the common law.
101. The onus of proving a testamentary document is the will of the testator lies on the party propounding the document. In the case of formal wills, the fact that the testator has signed the document in the presence of two witnesses who have not noticed signs of incapacity sufficiently discharges that burden, with the onus then shifting to the impeaching party to show that it ought not be admitted to proof: Bailey v Bailey (1924) 34 CLR 558. But as those formalities were not observed here, that burden cannot be discharged by formal means on the present application.
102. It is well-established that a testator must: (1) be of sound mind, memory and understanding; (2) know and approve of the contents of their will; (3) intend the document to constitute their will; (4) not be acting under the undue influence of another; and (5) not be acting as a result of fraud.
103. There is no suggestion in the circumstances of this case of undue influence or fraud. And it is highly probable because Brendan composed the Last Note himself that he knew and approved its contents. The present focus is on sound mind memory and understanding. Whether Brendan intended the last note to constitute his will, is considered here in the context of Succession Act, s 8.
104. A testator only has capacity to make a will if, at the relevant time, the testator is of sound mind, memory and understanding: Banks v Goodfellow (1870) LR 5 QB 549; Boughton v Knight (1873) LR 3 P&D 64; Marquis of Winchester’s Case (1598) 6 Co Rep 23a; 77 ER 287. The starting point for determining capacity was established long ago by Cockburn CJ in Banks v Goodfellow at 565:
“It is essential to the exercise of such power that a testator shall understand the nature of the act and its effects shall understand the extent of the property of which he is disposing shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affects, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.”
105. Essentially, a testator must be able to do three things: (1) understand the nature of the testamentary act; (2) know what property is available for disposition; and (3) be able to make a reasoned judgment as to who should or should not benefit under the terms of the will. A failure to satisfy one of these three requirements will lead to a finding that the testator lacks the requisite testamentary capacity.
106. As to the third requirement, the testator need not have exercised reasoned judgment in the testamentary instrument but merely demonstrate that reasoned judgment was a mental faculty which could be exercised at the time of execution: Petrovski v Nasev; The Estate of Janakievska [2011] NSWSC 1275 at [252].
107. The party propounding the will must satisfy the Court of capacity to the civil standard of proof. Mere residual doubt as to capacity is not sufficient to defeat a plaintiff’s claim to probate. The doubt cast as to capacity must be substantial enough to preclude a belief that the document propounded is the will of a testator of sound mind, memory and understanding. The joint judgment of Dixon CJ, Webb and Kitto JJ in Worth v Clasohm (1952) 86 CLR 439 at 453, states:
“A doubt being raised as to the existence of testamentary capacity at the relevant time, there undoubtedly rested upon the plaintiff the burden of satisfying the conscience of the court that the testatrix retained her mental powers to the requisite extent. But that is not to say that he was required to answer the doubt by proof to the point of complete demonstration, or by proof beyond a reasonable doubt. The criminal standard of proof has no place in the trial of an issue as to testamentary capacity in a probate action. The effect of a doubt initially is to require a vigilant examination of the whole of the evidence which the parties place before the court; but, that examination having been made, a residual doubt is not enough to defeat the plaintiff’s claim for probate unless it is felt by the court to be substantial enough to preclude a belief that the document propended is the will of a testatrix who possessed sound mind, memory and understanding at the time of its execution.”
108. When considering the question of validity of a will, the Court must distinguish between testamentary capacity and a testator’s wisdom or fairness. Hodgson JA in Romano v Romano & Anor [2004] NSWCA 37 at [48] cited the following statement on this subject that Gleeson CJ (as his Honour then was) made in in Re Estate of Griffith: Easter v Griffith (1995) 217 ALR 284 at 291 (“Griffith”):
“Where an alleged delusion concerns a fact, or state of affairs, bearing upon a judgment as to the moral claim one person has upon another’s bounty, and the question of its falsity is capable of objective determination, the task of the court is relatively straightforward. However, there may be cases in which one person’s estimation of another’s claims may seem harsh and unwarranted, and perhaps even unnatural, but it is impossible to assign a reason for that, or to point to any false belief. Testamentary capacity is not reserved for people who are wise, or fair, or reasonable, or whose values conform to generally accepted community standards. A person may disinherit a child for reasons that would shock the conscience of most ordinary members of the community, but that does not make the will invalid.”
109. It is well-established that assessing soundness of mind, memory and understanding is not synonymous with assessing whether or not the testator is suffering from mental illness. A diagnosis of a testator’s mental illness at the time of making the will does not mean the testator lacks capacity: Roche v Roche [2017] SASC 8. A diagnosed mental illness may be evidence of a lack of soundness of mind, but it is not always conclusive: Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197. A person suffering from a mental illness may have lucid intervals, and a will made in such an interval is valid: Cartwright v Cartwright (1793) 1 Phill Ecc 90; 161 ER 923.
110. A testator who commits suicide shortly after the execution of his will does not necessarily give rise to an inference of testamentary incapacity: Re Hodges; Shorter v Hodges (1988) 14 NSWLR 698; Butler v Thompson (NSWSC, Young J, 18 September 1997, unrep); Ryan v Kazacos (2001) 183 ALR 506; Philpot v Olney [2004] NSWSC 592.
111. What is sometimes considered in this context is whether the testator was suffering from delusional behaviour at the time of making the testamentary instrument in question. The fact that a testator was known to have delusions at a time reasonably proximate to the creation of the instrument might also raise concern as to whether those delusions affected the capacity of the testator to dispose of the testator’s estate: Seeley v Back [2005] NSWSC 68. But even if delusions are established the effect of a delusion can only be considered as to whether, per Williams J in Timbury v Coffee (1941) 66 CLR 277, at 280:
“The delusion overmastered the judgment at the time of executing the will to such an extent as to render him incapable of making a reasonable and proper disposition of his property or of taking a rational view of the matters to be considered in making a will.”
112. In Banks v Goodfellow, the testator believed that he was pursued by devils and evil spirits and by a man who was not in any way connected to him and who had been dead for several years. Yet, in that case, the testator was quite rational on other matters and was capable of managing his own business affairs. He was held to have had testamentary capacity.
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