Australia is one of the most diverse, and multicultural, countries in the world as it is home to hundreds of distinct cultures, identities, and languages. Today there are over 400 languages spoken across our nation, from the Asian dialects of Mandarin and Cantonese to the Indigenous languages of this land. As such, if you, or your loved one, speak one of these languages instead of English one crucial consideration when preparing your estate documents is that of Testamentary Capacity.

What is Testamentary Capacity?

Testamentary Capacity is the legal term that describes the level of understanding a will-maker, or testator, possesses at the time they create any estate document. For over 150 years, this standard of capacity has been developed into four connected components. These are that the testator must:

  • Comprehend the nature and purpose of the will they are making;
  • Understand, in general terms, the extent and breadth of their assets;
  • Recognise who may have a reasonable claim upon their estate and who may inherit from it; and
  • Not suffer from a mental, or medical, condition that would affect their rational decision making.

Testamentary Capacity and Non-English Speakers (‘NES’)

As noted previously, one of the most common issues in estate planning litigation arises where the court is to determine whether the testator had the capacity to create such a document. Here, it is important to note that the courts have suggested that testators do not use a family member or a proposed beneficiary as an intermediary or translator as questions may be asked concerning that beneficiary’s influence on the will’s contents and dispositions. However, if you are a beneficiary or family member, you may still set up an appointment or bring them to any meetings if required.

Non-English Speakers and Common Problems that Arise

Where this testator is a NES, there are further complications that may arise such as their lack of understanding, undue influence, or the miscommunication of their assets. Here, the process of writing a will as well as the contemplation of death is likely a task with heavy emotions meaning where these questions do arise this already difficult situation may become much more problematic.

What are Your Options?

In considering Australia’s aging population as well as the prevalence of immigrant Australians, the team at WMD can provide you and your loved ones with an array of accredited interpreters for your estate planning process. Fundamentally, these interpreters play a vital role in not only translating ordinary language, but also the ideas and concepts from a Non-English Speaker’s cultural context. For more information on interpreters the NSW LawAccess Website lists several different excellent resources.

We have a team of experienced and dedicated Lawyers who can alleviate the burden of writing, updating, and executing any estate planning documents.  So, please do not hesitate to contact our Will and Estate Lawyers on 9525 8688 or email  We also invite you to download our free Estate Planning eGuide.