---
title: "Will instructions, capacity and undue influence checklist (NSW, with other state notes)"
url: "https://ailawframework.com/precedents/wills-estates-probate-and-succession/will-instructions-capacity-checklist"
type: "precedent"
site: "AI Law Framework"
id: "a17-will-instructions-capacity-checklist"
area_id: "A17"
kind: "checklist"
ai_level: "red"
version: 1
law_stated_as_at: "2026-10-17"
---

# Will instructions, capacity and undue influence checklist (NSW, with other state notes)

> Checklist for taking will instructions in NSW: seeing the will-maker alone, testing capacity against Banks v Goodfellow, spotting undue influence and suspicious circumstances, mapping assets outside the estate, family…

Canonical page: https://ailawframework.com/precedents/wills-estates-probate-and-succession/will-instructions-capacity-checklist  
Law stated as at: 2026-10-17

Site index for agents: https://ailawframework.com/llms.txt

Checklist for taking will instructions in NSW: seeing the will-maker alone, testing capacity against Banks v Goodfellow, spotting undue influence and suspicious circumstances, mapping assets outside the estate, family provision risk and an execution plan.

## Key facts

- Kind: Checklist. Steps or checks to work through and tick off.
- Practice area: [Wills, Estates, Probate & Succession](https://ailawframework.com/precedents/wills-estates-probate-and-succession.md)
- Jurisdictions: New South Wales, Victoria, Queensland
- AI level: Red. Keep AI out of the decisive steps. A lawyer does the work.
- Law stated as at: 2026-10-17
- Status: Maintained. Checked on 2026-10-17 against the 6 authorities it cites, for New South Wales, Victoria and Queensland.

## When to use it

Use for every will instruction, and especially for older, unwell or dependent clients, late-life changes, gifts to carers or new partners, and instructions brought by a beneficiary. It records the lawyer's own assessment; it does not replace a medical capacity assessment where one is needed.

## How AI may be used

Lawyer-led. Instructions are taken from the will-maker personally and capacity is assessed by the lawyer (and a doctor where needed), not inferred by AI. AI may prepare a blank question agenda from background facts and transcribe an interview only with consent and in an approved tool.

**AI may:**

- Turn background facts into an open-question agenda and a blank note structure for the lawyer
- Draft a family tree and asset list from documents the client provides, for the lawyer to confirm
- Transcribe the instruction meeting in an approved tool, with the client's consent, for the lawyer to correct

**AI must not:**

- Must not answer the agenda questions or fill in the client's instructions
- Must not assess or score capacity, undue influence or suspicious circumstances
- Must not process medical records in a tool not approved for health information

**The lawyer checks:**

- The will-maker was seen alone and the instructions came from them
- Each Banks v Goodfellow element tested and recorded in the will-maker's own words
- Red flags escalated: medical assessment, second meeting, or declining to act

## Authorities

- Banks v Goodfellow (1870) LR 5 QB 549 (test for testamentary capacity)
- [Succession Act 2006 (NSW) ss 6, 9, 10 (execution; who cannot witness; interested witnesses)](https://legislation.nsw.gov.au/view/html/inforce/current/act-2006-080)
- [Succession Act 2006 (NSW) ss 57, 59, 60 and Pt 3.3 (family provision eligible persons and notional estate)](https://legislation.nsw.gov.au/view/html/inforce/current/act-2006-080)
- [Electronic Transactions Act 2000 (NSW) Pt 2B, s 14G (witnessing by audio visual link)](https://legislation.nsw.gov.au/view/html/inforce/current/act-2000-008)
- [Wills Act 1997 (Vic) ss 7, 8A (execution; remote execution procedure)](https://www.legislation.vic.gov.au/in-force/acts/wills-act-1997)
- [Succession Act 1981 (Qld) s 10 (how a will must be executed)](https://www.legislation.qld.gov.au/view/html/inforce/current/act-1981-069)

## Full text and drafting notes

The full text and the drafting notes are not part of this public page. Signed-in firm accounts can read them at https://ailawframework.com/precedents/wills-estates-probate-and-succession/will-instructions-capacity-checklist and through the signed-in MCP connector https://ailawframework.com/mcp/firm.

*Practice guidance for planning and review. Confirm current primary sources and the requirements of the actual matter. This is general information, not legal advice.*