April 18

Testamentary capacity. What is it?

Testamentary capacity is a gauge of the mental faculties of a testator when they create their will. A testator must be of competent mind, understanding, and memory in order to make a valid will. All testators are assumed to have testamentary capacity until it is proven that they do not.

Whether or not a client has testamentary capacity is not calculated via a legislated formula but derived from case law. It has been described as requiring time, situation, person, and task specific focus on a testator’s ability to remember, reflect, and reason.

Courts have been concerned with this issues for many, many years. The cases, starting from Banks v Goodfellow (1870)  require a testator to understand:

  • what it means to be making a will;
  • the assets they have and are leaving to others;
  • the obligation owed to those who could make a claim on the estate; and
  • whether or not they are affected by a delusion that influences the disposal of their assets.

The Court determines testamentary capacity on the facts and circumstances of each case.

When taking instructions, it is prudent for lawyers to ascertain the client’s capacity and the possibility of undue influence by asking non-leading questions to determine the facts and circumstances of each case. The court suggests that where an elderly client is being cared for by someone or is residing in an aged care facility, it is prudent to ask both clients and their carers whether there is any reason to be concerned about capacity.

April 6

Powers of attorney made before 1 September 2015

The Powers of Attorney Act 2014 commenced on 1 September 2015. Are the previous Powers of Attorney valid and how can the Principal revoke them?

Enduring powers of attorney (financial) and enduring powers of guardianship properly made before this date are valid.

Revocation of enduring power of attorney (financial)

A person who made an enduring power of attorney (financial) or enduring power of guardianship before 2015 can revoke the power by:

  • telling the attorney that their power is withdrawn and destroying the enduring power of attorney document and any copies or
  • completing a ‘Revocation of enduring power of attorney (financial)’ form and giving copies to the attorney(s).

It is also necessary to notify any relevant people or organisations who have a copy or knowledge of the power of attorney, of its revocation.

The Victorian Civil and Administrative Tribunal (VCAT) can revoke the appointment of an attorney if satisfied that it is in the best interests of the person who made the appointment to do so, and that person no longer has the capacity to revoke it.

April 4

What is the effect of marriage and divorce on a Will?

It is often that that a marriage or a divorce automatically revokes a will.  Is it so?


Section 13 of the current Victorian Wills legislation  deals with the effect of marriage on a will.

Marriage revokes a will unless the will was made in contemplation of that particular marriage. The contemplation need not be expressed in the will, but it will generally be easier to establish if it is.

Those who make wills while in a de facto relationship may not intend to marry when the will is executed but may nonetheless do so later. We make sure that our wills for spouses provide that it can be made in contemplation of marriage, so as to avoid an unintentional revocation if the testator (will maker) and their de facto partner subsequently marry. It also provides that the will is not void if the marriage does not take place.

Divorce or annulment

Section 14 of the current act  deals with the effect on a will of divorce – which includes a nullity or annulment of marriage.

Divorce does not revoke a will. However, unless a contrary intention is expressed in the will, divorce revokes any gifts to the former spouse and the asset passes as if the spouse had predeceased the testator.

Any appointment of the former spouse as executor or trustee is also revoked, however any appointments of the former spouse as a trustee of property left to beneficiaries that include the former spouse’s children, or any powers of appointment exercisable by the former spouse in favour of the children of the former spouse and the testator, are not revoked.

As we can see, like in many other instances,  the answer can be  yes but also no, depending on the circumstances.

April 4

What is a Reseal of Probate?

A reseal is necessary as the personal representative appointed (executor or administrator) by a grant in a foreign jurisdiction cannot deal with assets in Victoria, although enquiries should first be made with asset holders as some, such as banks and share registries, may accept a grant from another jurisdiction together with satisfaction of other requirements. This is particularly in the case of minor assets which may not have required a grant for release.

The Victorian Supreme Court has power to reseal a grant of probate made in other specified jurisdictions. This gives the person obtaining the reseal the same rights, duties, powers and liabilities as would have been imposed had the court originally given the grant.

What may be resealed?

A reseal may be obtained of any probate granted by a court of competent jurisdiction of any Australasian states and the United Kingdom and some other specifically listed countries proclaimed from time to time and published on the Supreme Court website.

A grant issued in a foreign jurisdiction not covered by the proclamation cannot be resealed. An application for a grant in Victoria in the normal way would be required.