Temporary Delusions & Testamentary Capacity

Neda Bilich died in March 2007 aged 90, her husband of 53 years, Ljubomir, predeceased her by several weeks. Their only child had died in 1958 as a young child.

Neda made a Will in November 1976 (“1976 Will”) appointing the Public Trustee as the executor and trustee of her will, and leaving her estate to her sisters, Slavka (Vida) and Anka, in equal shares; if they predeceased her their share would pass to those of their children who survived Neda.

Vida and Anka predeceased Neda; Vida left no children. Anka had three children who survived Neda. They are the First, Second and Fourth Defendants.

Neda made a will dated 19 December 1990 (“1990 Will”) appointing Millie Shroy as executor and left the whole of her estate to Anka’s youngest child Rudolf. In August 2007, Millie authorised the Public Trustee to obtain probate of the 1990 Will.

The Public Trustee claims that the 1990 Will is invalid because Neda did not have testamentary capacity when she executed that will. The Public Trustee instead claims that the 1976 Will is valid and that there should be a grant of probate to the Public Trustee in respect of that will. Anka’s oldest child Marijana supports that grant of probate.

Rudolf contends that at the time of executing the 1990 Will, Neda was of sound mind, memory and understanding, therefore, the 1990 Will is valid, and that there should be a grant of probate to him or to the Public Trustee in respect of that Will; however, if the 1990 Will was not validly made, the 1976 Will was validly made and there should be a grant of probate in respect of that Will.

Marijana believes that if Neda lacked capacity for both the 1976 Will, and the 1990 Will, died intestate and there should be a grant of letters of administration to the Public Trustee; in this case her surviving nieces and nephews, would be the beneficiaries of her intestate estate, pursuant to s 14 of the Administration Act 1903 (WA).

Around August 2007, Millie Shroy, the executor of the 1990 Will, authorised the Public Trustee to apply for an order that the Public Trustee administer Neda’s estate; that application was made, and granted, in 2008.

As a result, further information came to the attention of the Public Trustee, including the existence of the 1976 Will, and that Neda had been an inpatient at Royal Perth Hospital (RPH) at the time she made the 1990 Will. Observations made by her treating doctors regarding Neda’s testamentary capacity raised concerns regarding the validity of the 1990 Will.

Following an application to the Court in 2012, the Public Trustee was granted additional powers including the power to engage counsel to provide an opinion as to whether the Public Trustee should seek administration of the 1990 Will, the 1976 Will, or on Neda’s intestacy.

When making the 1990 Will, Neda

‘displayed symptoms of acute agitation and paranoid schizophrenia or paranoia for several years prior to, including and following the date of her admission to [RPH] on 18 December 1990…, including, on a sustained basis, accusing her husband of trying to poison her and having a girlfriend‘;

following her admission to RPH she experienced ‘an acute episode of psychosis’, and ‘suffered postoperative psychosis following surgery’, and that on 27 December 1990 she was transferred to Shenton Park Rehabilitation and was ‘noted to be suffering from paraphrenia (a mental disorder characterized by an organised system of paranoid delusions with or without hallucinations and without deterioration of intellect or personality)[and was] not orientated as to day, date, month or year.’

However, some aspects of the evidence support the conclusion that Neda had testamentary capacity; the delusional disorder she was suffering from did not cause complete impairment of all psychosocial and occupational functions.

Similarly, the witnesses made no indication in the hospital notes that they held any doubt as to Mrs Bilich’s capacity to make a will at the time. However, Neda had made repeated requests to make a will, as she was anxious that it should occur prior to surgery, therefore assistance was given to make a will, in order to put her mind at ease.  One of the witnesses noted that Neda had been advised that she should have another will made by a solicitor, after her discharge from hospital; the other witness held some reservations about Neda’s testamentary capacity.

Having regard to the totality of the circumstances, the Court wasn’t satisfied that Neda had testamentary capacity at the time she made the 1990 Will; primarily due to the nature of the delusional belief she held about her husband which affected her ability to rationally comprehend that he had a very strong claim to her estate. He was her husband of 37 years, they continued to reside together, he was an invalid pensioner, and required her financial support to pay the household bills, while she owned property from which she derived an income. Yet without any explanation, the 1990 Will left her entire estate to a nephew who lived overseas.

The Court concluded that the delusional disorder from which Neda was suffering

‘poison[ed] [her] affections [and] pervert[ed] [her] sense of right’.

Leaving substantial doubt that she was of sound mind and understanding at the time she made the 1990 Will.

Rudolph had not been able to establish that Neda had testamentary capacity when she made the 1990 Will. Consequently, the 1990 Will is invalid for want of testamentary capacity.

The Court ordered that probate should be granted on the 1976 Will as it was properly executed, and there was no evidence to displace the presumption that Neda had testamentary capacity when she made the 1976 Will.

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