Concerns about undue influence and mental capacity feature large in wills and estates practice, particularly as practitioners see more older clients, amidst a heightened awareness of elder financial abuse. For lawyers, the risk is not only an unjust outcome for a vulnerable client, but a will that later attracts challenge, criticism of the file, and potential professional liability if the evidence of independent instructions and capacity is thin.
Here to unpack the practical red flags, interview techniques, and drafting-stage safeguards is Linda Hart, College lecturer, Principal at Solace Legal, Accredited Specialist (Wills & Estates), and a TEP. Linda outlines how to identify capacity concerns early, manage family pressure in the room, and build a defensible process that protects both client and practitioner if the estate is later contested.
The Standard Every Practitioner Must Know
The starting point for any capacity assessment in will-making remains the test in Banks v Goodfellow (1870) LR 5 QB 549. To have testamentary capacity, a client must understand the nature and effect of making a will; understand the extent of the property they are disposing of; comprehend and appreciate the claims to which they ought to give effect; and not be affected by any disorder of the mind or delusion that influences the dispositions made in the will.
Importantly, the test does not require a client to be free of illness, cognitive decline, or eccentricity. Capacity is assessed at the time the will is made, and a person may satisfy the test notwithstanding age-related decline or a diagnosed mental illness.
This was reaffirmed in the recent Victorian decision of Re the Estate of Drousiotou [2026] VSC 19, where the deceased's will was challenged on the basis of alleged mental illness and delusions. The Supreme Court dismissed the challenge and upheld the will.
As Linda notes, "this case demonstrates a person may still have testamentary capacity despite mental illness, eccentricity, or age-related decline."
Red Flags: What Should Put a Practitioner on Alert
If you’re concerned about a client’s capacity, what should you look for? Linda identifies three situations that should prompt closer attention.
- The accompanied client. "There is no issue with family members bringing clients to appointments, but I tend to proceed with caution and always speak with the clients by themselves to ensure that they are not unduly influenced or that they haven't been coached in what to say," Linda explains. Where a client proposes to gift the whole of their estate to the person who accompanied them, it’s worth finding out more. "I will ask further questions and probe into their life and obtain an understanding of why they wish to do this."
- The client who cannot relay basic information. A client's ability to give a coherent account of their family and financial situation tells you a great deal. "If clients are unable to provide information regarding their family or financial situation, this raises concerns that they may lack capacity," Linda says. She asks open-ended questions, inviting clients to describe their assets and approximate values. "They do not have to relay the exact balance in their accounts, but must be aware of what they hold approximately in their accounts and what they own."
- The unwell or hospitalised client. Illness, medication, and emotional distress can all affect judgment. "If clients are terminally ill or in hospital it can raise a red flag about their capacity due to the fact that they are likely to be on medication which may affect their ability to provide instructions," Linda says. “They may also be in an emotionally vulnerable state which can cloud judgement and affect their instructions.”
In these situations, she recommends speaking with the client's treating doctors to understand the illness, the medications involved, and to find the window when the client is most alert. "Sometimes patients are more alert in the morning than they are in the evening and vice versa."
When the Family Member Will Not Leave the Room
Few situations in wills practice are more awkward than a family member who refuses to leave during the instructions appointment. Get it wrong, and the evidentiary foundation of the will can be undermined from the outset.
Linda's approach is direct. She explains to the family member "that it is essential to meet with and obtain instructions from the client alone, as this assists in minimising any risk of the client's instructions or decision-making being challenged at a later date." She also frames it as being in the family member's own interest: it "also protects the family member, as it reduces the prospect of any allegation being made by other family members that the client was subjected to undue influence or pressure."
If the family member still refuses to leave, the appointment does not proceed. "If the family member continues to refuse to leave, I will not take instructions from the client, particularly if it is for the preparation of their Will. In addition, it raises concerns as to why the family member won't allow the client to give instructions alone."
That refusal, and the circumstances around it, should go straight onto the file.
A Defensible Process from Instructions to Execution
The drafting stage is where a practitioner's process either holds up or falls apart. Linda has a structured approach that she applies consistently, from the first appointment through to execution.
She meets with the client alone and takes instructions only from the client. Where a client does not speak English, she arranges an independent interpreter rather than allowing a family member to fill that role. If capacity concerns emerge during the initial meeting, she requires a formal assessment by a medical practitioner before instructions are taken.
During the appointment, she asks open-ended questions and starts somewhere that puts the client at ease.
File notes matter enormously. Linda records not only the client's instructions but her observations of their presentation, health, and demeanour at the time. That contemporaneous record is the practitioner's clearest protection if the will is challenged years later.
Once a draft Will is prepared, Linda sends it to the client for review before a further meeting to discuss it. When the Will reaches final form, she holds a separate signing appointment, at her office or at the client's premises. No one else is present at execution (other than the second independent witness), and she reads through the Will again to confirm understanding and capacity at that moment.
"At the signing stage, I ensure that there is no one else in the room (other than the second independent witness) when they are signing their Will, and I go through the Will with them again to ensure that they understand it and ensure that they have capacity at the time of signing it. This is particularly important if the client has a terminal illness, as their health can decline within days."
Resources for Practitioners
The profession is not without guidance on these issues. The LIV Capacity Guidelines and Toolkit, the Law Council of Australia's Best Practice Guide for Legal Practitioners in Relation to Elder Financial Abuse, and the Best Practice Guide for Legal Practitioners in Relation to Elder Financial Abuse and Assessing Mental Capacity all provide practical frameworks that practitioners can draw on and reference in their files.
These resources, read alongside Banks v Goodfellow and the developing case law, give practitioners a solid foundation. The challenge, as Linda sees it, is not the absence of guidance. It is whether that guidance is applied with consistency.
As the population ages and scrutiny of elder financial abuse continues to grow, courts and regulators will look harder at whether practitioners followed an appropriate process, not just whether the will appeared to reflect the client's wishes. The file notes that document that process will matter more than ever.
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