Supreme Court appeal shows testamentary capacity challenges could be on the up

Date: Oct 15, 2019

A recent appeal brought before the NSW Supreme Court shows that appeals against Will writers‘ testamentary capacity could be on the rise. This means that solicitor evidence about the deceased’s lucidity when dividing their estate could now be more important than ever. What are the trends behind this case, and how did events in this particular case unfold in the Supreme Court?

Testamentary capacity challenges on the up?

A recent Mondaq article claims that cases in which a Will-maker’s testamentary capacity is challenged are now becoming more frequent, due to Australia’s aging population. The Australian Institute of Health and Welfare shows roughly one in seven people are now aged 65 and over. This higher ratio of older Australians has led to a subsequent increase in the prevalence of age-related diseases with related cognitive deterioration.

As these diseases become more common, this impact on mental processing power can have a knock-on effect on an elderly person’s testamentary capacity.

Drivas v Jakopovic in the Supreme Court

In September 2007 the deceased signed a Will leaving her property equally to her two children, one of whom is the appeal respondent. This draft was created with the aid of the deceased’s then-solicitor, who arranged for her to write and sign it in his office. While the solicitor did not have any recollection of the deceased’s state of mind when the Will was prepared, he did give evidence of his usual practices at the time and show his notes on her file. Neither of these suggested the deceased’s testamentary capacity was compromised.

The primary judge relied on the solicitor’s evidence principally, rather than on the respondent’s claim and medical evidence that the deceased was, at the time, not in a fit state to create a binding legal document. The respondent also claimed that the solicitor’s behaviour in dealing with this situation was out of practice with his usual steps taken in handling estate and succession planning matters.

Following deliberation, the Supreme Court ruled that the primary judge had been right in affording the solicitor precedence in determining the deceased’s testamentary capacity. The solicitor had practiced as a family law solicitor for more than 30 years prior to this case, meaning his judgements and usual practices in drafting a Will were accepted as sound and professional.

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