She Had Testamentary Capacity, But Her Will Was Still Invalid

A recent NSW Supreme Court decision is a useful reminder for estate planning practitioners:

Testamentary capacity is not enough.

In The Estate of the late Wilma Annette Pusterla [2026] NSWSC 951, the Court found that a 92-year-old testator had testamentary capacity when she signed her final will.

Yet the will was refused probate because the Court was not satisfied that she knew and approved its contents.

What happened?

Wilma Pusterla died in December 2023 leaving an estate worth about $3 million.

For more than a decade, her wills had consistently benefited several charities. Philip Smith, the son of her late partner, had never previously been a beneficiary.

By 2023, Ms Pusterla was 92, legally blind, physically frail and living in residential care. Mr Smith had become increasingly involved in assisting her affairs and was her attorney and enduring guardian.

Ms Pusterla told Mr Smith that she wanted to leave him her house.

Mr Smith contacted a solicitor about preparing a new will. That is where the process began to unravel.

The solicitor did not take testamentary instructions directly from Ms Pusterla. Instead, he communicated with Mr Smith and ultimately prepared a will appointing Mr Smith executor and leaving him the whole estate not merely the house.

In cross-examination, the solicitor accepted that he had never taken instructions directly from Ms Pusterla, never independently confirmed what she wanted and never sent her a draft.

Williams J described the manner in which the solicitor discharged the retainer as “highly questionable, to put it mildly.” The solicitor also did not attend the execution.

Instead, Mr Smith arranged for two people known to him neither of whom had previously met Ms Pusterla to attend the nursing home.

The will was read aloud and signed during a short meeting. She was not asked why she was abandoning her longstanding charitable beneficiaries, and she was never subsequently given a copy of the will.

The Court's decision

The Court found that Ms Pusterla did have testamentary capacity.

Despite her age and frailty, the evidence did not establish that she lacked the ability to understand the nature of making a will or the property she was disposing of. Williams J observed that much of the challenge was really directed to whether she had exercised sound judgment, rather than whether she had the capacity to exercise judgment at all.

But capacity and knowledge and approval are different questions.

The circumstances surrounding the preparation and execution of the will created what the Court described as a “strong and well-grounded suspicion” as to whether the document actually reflected Ms Pusterla's true intentions.

The critical discrepancy was simple: Ms Pusterla had said she wanted Mr Smith to receive her house.

The will gave him everything. There was insufficient evidence that she understood or intended that difference.

The 2023 will was therefore invalid, and the earlier 2020 will prevailed.

The lessons for estate planning practitioners

The case is a good reminder that the strength of an estate plan depends not only on the document, but on the process used to create it.

There are several practical lessons:

• Take instructions directly from the client, particularly where another person stands to benefit.

• If the proposed will substantially departs from previous wills, ask why and record the explanation.

• Where a beneficiary is heavily involved in arranging the estate plan, increase the level of independence surrounding the instruction and execution process.

• Do not confuse testamentary capacity with knowledge and approval. A client may have capacity but still fail to appreciate that the document presented to them does something different from what they intended.

• With elderly or vulnerable clients, careful file notes, independent instructions and a properly managed execution process may ultimately be as important as the drafting itself.

  
  

Perhaps the most important lesson from Pusterla is this:-

A legally well-drafted will is not enough. The process must also demonstrate that the document genuinely records the client's independent intentions.

That has implications beyond lawyers. Financial advisers and accountants increasingly identify estate planning issues as part of their broader client relationship. Technology can make that process far more efficient but it should not dilute the legal safeguards that make an estate plan defensible.

That is one of the objectives behind Inherit Australia: giving advisers a structured way to identify and progress estate planning needs while preserving the lawyer-led instruction, advice and documentation process where it matters.

Technology should simplify the estate planning journey. It should never compromise the integrity of the legal process.