What if the will-maker isn’t of sound mind?

Date: Nov 27, 2019

Age-related conditions like dementia can have a huge impact on how a will-maker divides his or her estate. A recent NSW Court of Appeal case tackled this question: What is the testamentary capacity of an aging will-maker?

In 2007, Marija Jakopovic, of NSW, signed a will that divided her property equally between her son and daughter – however, the will also stipulated that while her son’s children would inherit his portion should he pass before Ms Jakopovic, the daughter’s children would not if she should predecease Ms Jakopovic. This was further complicated by earlier drafts of the will that provided unequal inheritance to the grandchildren in the same situation.

When Marija Jakopovic died in September 2015, her daughter had predeceased her, and her grandchild argued that the final 2007 will was invalidated by Ms Jakopovic’s insufficient testamentary capacity.

What is testamentary capacity?
Put simply, testamentary capacity requires that the will-maker be of sound mind. It’s a well-established Australian legal parameter, requiring the the testator understand what it means to make a will, be able to properly value their estate, recognized those individuals (family, especially) who may lay any claim to the estate, and – most importantly – not currently be conditioned by delusion thinking that might impact the will itself.

Claims of dementia
When Ms Jakopovic’s grandaughter on her daughter’s side, Anita, sought probate following her grandmother’s death, it was under the claim that Marija Jakopovic was suffering from dementia at the time she signed her will.

Two parties were called on for evidence — the solicitor who drafted the will, and medical professionals. The solicitor explained that though he had no memory of working with Ms Jakopovic, he would only have added a provision like the one in the final will — in which Ms Jakopovic’s grandchildren on her daughter’s side wouldn’t receive inheritance should their mother predecease Ms Jakopovic — it wasn’t something he’d included unless specifically instructed by the will-maker. Meanwhile, the medical professionals examined 2006 CT scans that implied Ms. Jakopovic likely had symptoms of dementia before signing her final will.

The Decision
In the end, the Court placed much more emphasis on the solicitor’s evidence than the medical professionals’. While the CT scans held some evidence of Ms Jakopovic mental health, they didn’t take into account the full picture like the solicitor did, especially considering his experience working with the elderly on wills. Essentially — the solicitor’s would have been a better judge of testamentary capacity than a CT scan. The Court ruled in favor of the final will. An appeal was made but dismissed.

If you have questions about testamentary capacity, you should get in contact with Gerard Malouf and Partners today.

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