The death of a loved one is difficult, and disputes about that loved one's estate can make this all the more so. Disputes concerning testamentary capacity can be emotionally charged, drawn-out, and factually complex. In recent years, the prevalence of estate disputes has increased for many reasons, including the ageing population, the increase in life-expectancy leading testators to live longer than their mental faculties, and the increase in the average size of estates (driven by the increasing value of real estate).
In Drivas v Jakopovic, the appellant disputed the will of her grandmother, and the NSW Court of Appeal upheld the decision of the primary judge who gave significant weight to lay evidence over medical evidence in determining whether the deceased had testamentary capacity at the time she made her will.
Essentially, the law requires that the testator:
A short time later, in September 2007, Ms Jakopovic executed another will, which was substantially identical save that it removed the provision allowing Branka's children to inherit in the event that she predeceased her mother. The provision for Boris' children remained. As it happened, Branka predeceased Ms Jakopovic, leaving a daughter, Anita, surviving her.
Following Ms Jakopovic's death in September 2015, the September 2007 Will was admitted to probate in common form. Anita subsequently sought probate of the May 2007 Will on the basis that, as she was suffering dementia, her grandmother lacked testamentary capacity at the relevant time.
Although Mr Taylor had no independent recollection of acting for Ms Jakopovic, he gave evidence that he had experience in drafting wills, powers of attorney and appointments of enduring guardians for elderly clients. He was aware of the Banks v Goodfellow test and stated that it was his normal practice to make detailed notes of his discussions with a client and keep those notes in the firm's safe custody if he had reservations about whether that client satisfied the test. No such notes were included in the firm's safe custody. He also said that the inclusion of the provision that only Boris' share of the estate, and not Branka's, would go to his children if he were to predecease them was not in accordance with his usual practice. He stated that he would have only included this provision if specifically instructed by the client to that effect.
With respect to the medical evidence, the Court considered a CT scan of Ms Jakopovic undertaken in October 2006 which showed she had significant vascular disease in the brain, consistent with dementia. It also considered the MMSE three tests, which are used to screen for dementia, administered to Ms Jakopovic in April and June 2007. However, the Court held that these two tests did not constitute significant evidence of testamentary incapacity given that they did not provide reliable information as to the degree or nature of the impairment. Further conclusory expert medical opinion was also provided by two doctors. However, the Court again did not give it any significant weight as it was apparent the doctors were not aware of the full facts surrounding Ms Jakopovic's relationship with her family.
Conversely, the Court placed significant weight on the evidence of Mr Taylor for reasons including the following:
The Courts have consistently placed great emphasis on lay evidence of observations of the deceased at the time they prepared the will in question. However, what makes this case all the more unique is that it was the absence of evidence to the contrary that was persuasive. That is, the court was able to draw an inference sufficient enough to satisfy itself on the question of capacity from what the solicitor did not do, rather than what he did. That is, the failure of the solicitor to keep his notes indicated that he formed the view at the time the deceased had capacity.
Cases like this always serve as an important reminder to keep your will updated to reflect current intentions. It is also a reminder for solicitors to be diligent in satisfying themselves of the elements of Banks v Goodfellow when preparing a will for a client to ensure that the client has testamentary capacity at the time they execute their will.
McCabe Curwood has extensive experience in advising on and acting in will disputes, as well as drafting wills and estate planning. Do not hesitate to contact us if you require any assistance.
This article is not legal advice. It is intended to provide commentary and general information only. Access to this article does not entitle you to rely on it as legal advice. You should obtain formal legal advice that is specific to your particular circumstances.