Legal Capacity isn’t the same as Medical capacity

Alexander Kipritidis died in July 2013 aged 73. He had been suffering from a chronic schizophrenic disorder of a paranoid kind since the 1970s and, at the time of his death, his affairs were under the control of the NSW Trustee & Guardian. He had been divorced twice and had no children.

It was thought that Alexander had died without making a valid Will therefore his estate would pass to his first cousins, under the laws of intestacy.

Subsequently, a Will was found that had been made in October 1995, leaving his estate to “the Socialist Party of Australia” (the Party) and appointed the General Secretary of the Party, or his successor in that position, as the executor of his estate.

The Socialist Party of Australia changed its name in October 1996 to The Communist Party of Australia. The current General Secretary of the Party is, Robert Briton.

Following discovery of the will, Alexander’s cousin John lodged a caveat in respect of any grant of probate; stating that due to Alexander’s testamentary incapacity the will is invalid and therefore his estate should pass to the Cousins.

In April 2014, Mr Briton brought court action seeking probate of the Will. Alexander’s cousin John opposed the granting of probate.

In the 1970s, Alexander was diagnosed with paranoid schizophrenia. He suffered from delusions that banks, and government agencies were against him and trying to harm him. He received psychiatric treatment including prescription medication, which ameliorated his symptoms. In 1989 he stopped taking his medication, and was on occasion, incapable of caring for himself.

In August 1992, Alexander started a fire in his home,and was admitted to a psychiatric hospital. After he was discharged he continued to receive outpatient treatment. In May or June 1995 Alexander was admitted to a psychiatric hospital after stating that he believed the chest pain he was experiencing was caused by ASIO putting electrical impulses into his body to kill him.

In August 1995 Alexander instructed a solicitor to make a Will. The solicitor did not make file notes but gave evidence that on the few occasions that they met Alexander, was lucid, answered questions promptly and without any hesitation, and did not ramble in his speech. Alexander made extensive typewritten notes in relation to these meetings.

The test of a Will Maker’s capacity has four elements:

  • they must understand the nature and significance of making a will
  • have an ability to recall at least in general terms the nature, extent and value of the estate
  • be capable of comprehending and appreciating any claims on their estate
  • must not have suffered from a delusion that influenced the terms of the will at the time it was made.

Importantly the test is a legal, not medical one to be determined by

“commonsense judicial judgment on the basis of the whole of the evidence”

The Court found that Alexander met the test for capacity and that his will was valid. Importantly Alexander’s mental condition did not affect his ability to make rational decisions concerning the recipients of his estate to the point where he lacked testamentary capacity.

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