Testamentary Capacity and Dementia: What Croft v Sanders Means for Estate Planning
- Justeen Dormer
- Feb 4
- 3 min read
Challenging a Will
Estate disputes are increasingly common, especially when family members question the validity of a will due to concerns about testamentary capacity or mental health issues such as dementia and delusions. Understanding the law around challenging a will in NSW is crucial if you are considering a will contest or need to defend a loved one's wishes.
In the landmark case of Croft v Sanders, the NSW Court of Appeal confirmed that a person can retain testamentary capacity even when there is medical evidence of dementia, hallucinations, or delusional beliefs. This case is a key reference in contesting a will on the grounds of mental capacity, offering guidance for those facing complex estate disputes.
The dispute centred on the estate of Warwick Croft, who passed away in 2016 at the age of 85. His final will, executed in October 2013, left the majority of his estate, valued at approximately $3 million, to his daughter Anna, with his five other daughters receiving modest gifts of $40,000 each. Importantly, this marked a significant difference from an earlier will that divided the estate evenly.
Two daughters challenged the will. As substitute executors named in the earlier will, they argued that their father lacked the capacity to make a will in 2013 due to advanced dementia and a history of hallucinations and delusions about their family. This type of claim is commonly referred to as a testamentary capacity dispute or challenging a will due to mental incapacity.
At first instance, the Supreme Court of NSW rejected the challenge and granted probate of the will, emphasising the rigorous legal tests for upholding or invalidating a will. The daughters appealed.
On appeal, the Court carefully considered the evidence for and against testamentary capacity, including medical assessments, observations from those who knew the deceased, and the structure of the will. It is important to note that having dementia does not automatically invalidate a will. The Court was not persuaded that Warwick Croft’s cognitive issues, though present, meant he lacked the legal capacity to make a valid will.
Crucially, the Court distinguished between simply having dementia or delusional beliefs and those conditions actually impairing the ability to:
understand the nature and effect of a will;
grasp the extent and value of estate assets; and
recognise those with a right to make a claim on the estate.
The Court found adequate evidence that, at the time of making the will, Warwick Croft understood these essential elements and was therefore considered to have legal capacity.
As a result, the appeal was dismissed and the 2013 will was upheld in court, a result that stresses the importance of clear documentation, detailed medical reports, and professional legal advice in estate planning.
Key Lessons from Croft v Sanders for Australian Families
Testamentary capacity is assessed at the time of making a will, not at a general point during cognitive decline.
Dementia or delusions do not automatically invalidate a will. Evidence must show these issues affected the ability to make sound decisions about the estate.
Challenging a will for lack of capacity requires strong evidence, both medical and personal.
Protect your will from future challenges by ensuring proper legal advice, up-to-date medical input, and thorough documentation.
Consider expert guidance if a loved one’s capacity is in question when preparing or changing a will.
If you are involved in an estate dispute, worried about inheritance issues, or believe a family member’s will is invalid due to dementia, expert legal advice is essential. Proper planning and solid legal support make a significant difference in avoiding costly will disputes and ensuring your family’s wishes are respected.