Recent decisions of the Supreme Court of Victoria show that not all disputes around a Will and the obtaining of a Grant of Probate are treated the same. Some warrant closer examination by the Court, while others may be struck out at an early stage, sometimes with significant cost consequences for the parties who commence proceedings.
Two decisions handed down by the Victorian Supreme Court in 2026, Re the estate of Iovenitti [2026] VSC 106 and Re the estate of Drousiotou [2026] VSC 19, highlight the real risks involved in alleging that a testator lacked testamentary capacity.
Although lack of testamentary capacity is a commonly relied upon ground for lodging a caveat to prevent a Grant of Probate being obtained in respect of a Will, these cases demonstrate that courts will look beyond bare allegations and require strong and reliable evidence to support the caveator’s claim.
Testamentary Capacity
The Australian legal system places strong importance on a person’s right to decide how their estate should be distributed when making a Will. Under the long‑established case of Banks v Goodfellow (1870) LR 5 QB 549 (Banks v Goodfellow test), a person may have the capacity to make a Will even if they are unwell, elderly, or living with a mental health condition.
What matters is whether, at the time the Will is made, the person can:
- be aware of and appreciate the significance of making a Will;
- be aware in general terms of the nature and value of the estate they are leaving;
- be aware of those who have a claim to the estate and the basis for those claims; and
- have the ability to evaluate and discriminate between the respective strengths of those claims.
Testamentary capacity will only be lacking where an impairment prevents the testator from grasping these basic matters. Accordingly, courts will not render a Will invalid merely because a testator had medical issues or made decisions that disappointed family members, particularly where the Will appears coherent and deliberate.
Maintaining a Caveat: The Prima Facie Case Requirement
A caveat is intended to preserve the estate while a dispute regarding the validity of the Will is assessed. To keep a caveat in place, the person lodging it must show there is enough to raise a real question about whether the Will is valid, not merely a belief that it should be challenged.
As explained in Gardiner v Hughes [2019] VSCA 198, this does not require proving the claim will ultimately succeed but, rather, showing a real issue worth investigating.
When a court is asked to remove a caveat or dismiss a proceeding at an early stage, it does not decide who will ultimately win. Instead, it considers whether there is a genuine factual basis for the challenge. This may include the terms of the Will, any significant departure from earlier Wills, evidence of the testator’s health or cognitive state at the time the Will was made and whether surrounding circumstances genuinely call the Will’s validity into question. If not, the caveat is likely to be removed.
What Evidence Will Support (or Undermine) a Testamentary Capacity Caveat
In practice, the outcome of a caveat application often turns on the quality and nature of the evidence available at an early stage.
Evidence capable of supporting a testamentary capacity challenge to a Will may include:
- medical records indicating cognitive impairment around the time the Will was executed;
- opinions from treating practitioners addressing testamentary capacity, rather than merely recording a medical diagnosis;
- evidence from solicitors or witnesses identifying confusion, difficulty giving instructions, or a failure to understand assets or beneficiaries in accordance with the Banks v Goodfellow test;
- a sudden or unexplained departure from prior testamentary intentions; and
- credible witness evidence from carers, friends, or family describing impaired reasoning relevant to the making of the Will.
By contrast, caveats are vulnerable where the evidence consists only of general assertions of mental illness, age or declining health, at around the time of executing the Will, especially without clear evidence that those matters impacted the testator’s testamentary capacity.
Failed Testamentary Capacity Caveat
Re the estate of Drousiotou [2026] VSC 19
The deceased left his estate to his long‑term partner or, if the partner did not survive the deceased, to five charities, under a Will made in 2009. The partner of the deceased predeceased him, leaving the estate to the five charities. This represented a change from an earlier Will made in 1988, under which members of his family, including nieces and nephews, would benefit as secondary beneficiaries (beneficiaries who would only receive a benefit if the primary beneficiary, i.e. the partner, did not survive the deceased), as opposed to charities.
Those nieces and nephews lodged a caveat, alleging the deceased lacked testamentary capacity due to mental illness and a belief that his family had rejected him. The plaintiff, being the solicitor who drafted the Will and the executor of the estate, sought a prima facie case hearing, essentially asking the Court to decide at an early stage whether the nieces’ and nephews’ claims had enough evidence to justify continuing with the caveat proceeding, challenging the validity of the last Will.
The Court decided in favour of the plaintiff, ordering that the caveat be struck out and that the caveators pay the plaintiff’s costs. It emphasised that the Will was rational and consistent with the deceased’s circumstances at the time of executing his Will. Mental illness alone did not amount to a lack of testamentary capacity.
Successful Testamentary Capacity Caveat
Re the estate of Iovenitti [2026] VSC 106
By contrast, in the case of Iovenitti, a Will made in 2021 left the deceased’s estate to a friend and godson. Less than one month before her death, the deceased made a new Will in 2024 prepared by a solicitor, leaving the estate to her late husband’s cousin and hairdresser.
The beneficiaries under the earlier Will challenged the later Will on the basis that the deceased lacked testamentary capacity. The executor applied to have the proceeding dismissed at an early stage, but the Court refused.
Importantly, the Court did not find that the deceased lacked testamentary capacity. Instead, it concluded that the caveators had shown enough to justify further investigation. Relevant factors included:
- the sudden and significant departure from the earlier Will;
- the unusual choice of beneficiaries;
- allegations that the reasons given for the change were untrue; and
- evidence of health issues that may have affected the deceased’s decision‑making.
Taken together, these matters warranted a full hearing rather than summary dismissal, and the caveat was allowed to remain in place.
Final Thoughts
Challenging a Will on the basis of testamentary capacity carries significant risk if unsupported by solid evidence and substantiated suspicious circumstances.
These cases demonstrate the importance of carefully assessing the available evidence at the outset, as weak or speculative claims may result in early dismissal and adverse cost consequences.
If you are dealing with a contested estate, concerns about a Will, or would like guidance on your options at an early stage, please contact us on (03) 9598 9489 for a confidential discussion.
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