Testamentary Capacity – Legal v Medical

Marija Jakopovic died in September 2015 at the age of 82. She married Josip, and they had two children, Branka and Boris. The family migrated to Australia in January 1965. Branka married and had one child, Anita Drivas.

In June 1998 Marija made a Will appointing Branka as executrix and leaving her estate to Branka and Boris in equal shares. If either Branka or Boris predeceased Marija but leaving children, then those children would take the share that their parent would have received had he or she survived the deceased.

In May 2007 Marija made a new Will with similar provisions regarding her grandchildren but altered the share leaving Branka sixty per cent and Boris forty per cent of her estate; appointing Branka executrix but, in the event of her refusal or inability to act, her granddaughter Anita was to act as executrix.  At this time Marija also executed a power of attorney in favour of Branka and appointed her enduring guardian, with Anita as alternative enduring guardian.

In June 2007 Marija approached her solicitor and revoked the power of attorney in favour of Branka and executed a general power of attorney in favour of Boris. In September 2007, Marija appointed Boris as her enduring guardian and had her solicitor prepare a Will appointing Boris as her executor, and in the event of his being unable or unwilling to act, named her solicitor Michael Taylor, executor. If he was unable to act, the partners of Michael’s firm of solicitors were to be executors.

The Will left the whole of the deceased’s estate to be divided equally between Branka and Boris. It provided that should Boris predecease the Marija, leaving children surviving him, then those children would take their father’s share, but it contained no comparable provision in favour of Branka’s children.

Michael Taylor followed his usual practice when he prepared the Will in September 2007. He interviewed Marija alone and his file notes made no reference to any concern that she lacked the capacity to make a Will.

In June 2011, Branka died suddenly. Marija died in September 2015. In February 2016 Boris obtained probate of the September 2007 Will.

Anita challenged the September 2007 Will on the basis that Marija lacked testamentary capacity. If the September 2007 Will was found to be invalid, Marija’s last will would become her May 2007 Will. Boris cross-claimed, contending that if the September 2007 Will is ruled invalid the May 2007 Will would also be invalid for want of testamentary capacity.

Thus, if the Court found that Marija lacked testamentary capacity when making the May and September 2007 Wills, her estate will be dealt with in accordance with the 1998 Will; as a result of the death of the named executrix, Branka, it would be necessary for an administrator to be appointed. There are competing applications by Anita and Boris for appointment as administrator.

Additionally, Anita sought an account of Boris’s dealings under the June 2007 power of attorney. Boris argued against the making of any such order.

As posted before the modern test of capacity to exercise testamentary power  is set out in the following passage from Banks v Goodfellow ((1870) LR 5 QB 549 at 565):

It is essential to the exercise of such a power that a testator shall understand the nature of the act and its effects; shall understand the extent of the property of which he is disposing; shall be able to comprehend and appreciate the claims to which he ought to give effect; and, with a view to the latter object, that no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties – that no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made.

The Court was satisfied that the Marija knew that she was making a will and knew what the effect of doing so would be. Marija’s estate was simple; it consisted essentially of the family home. Marija knew she had a home, and where it was; operated her bank account and paid her bills without any assistance. There was nothing in the evidence to suggest that the deceased was unaware of the nature and extent of her property.

Therefore the Court relied on the third element of the Banks v Goodfellow test.

Medical opinions submitted to the Court stated Marija was unlikely to have been able to appreciate the merits of the claims on her estate. Importantly although she was likely to be able to appreciate their merits of Branka and Boris’s claim, but not those of her grandchildren.

The Court accepted the evidence of Michael Taylor, an experienced solicitor who detected no difficulties with Marija’s testamentary capacity when he prepared her Will stating

 That, in itself, is valuable evidence which favours a finding upholding the will: 

Similarly, the Court accepted that Marija must have taken the May 2007 will to Mr Taylor when she visited him in September of that year and requested to change the Will so that Boris’ children would take his share if he predeceased her but that Anita was not to receive Branka’s share if Branka pre-deceased her.

Anita’s challenge to the Will failed, and both Anita’s claim and as a consequence Boris’ cross-claim were dismissed.




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