Luciano Paoli is 84 and made a will in 2007 – in late 2019 following changed financial circumstances he instructed solicitors to make a new Will. On 21 November 2019 Luciano’s solicitor prepared a draft Will based on Luciano’s final instructions, however, before that draft Will was executed Luciano suffered a stroke.
Luciano’s wife Vlasta applied to the court pursuant to s 7 of the Wills Act 1936 (SA) (the Act) for the making of a statutory will reflecting the final instructions given by Luciano to his solicitor.
The Court appointed a litigation guardian for Luciano.
Luciano and his wife Vlasta have been married for 39 years. There are no children of the marriage. Luciano has three children from an earlier marriage and is the stepfather of the Vlasta’s only child.
Section 7 the Act, empowers the Supreme Court of South Australia to authorise a Will to be made on behalf of a person who lacks testamentary capacity, in situations where adults lose their legal capacity; or have never had testamentary capacity.
In doing so, the Court must be satisfied that:
- the proposed testator lacks testamentary capacity, and
- the proposed Will accurately reflects the likely testamentary intentions of the proposed testator, and
- it is reasonable in all the circumstances that the Order should be made.
The evidence provided in lost-capacity cases tends to be less problematic. As the Court has some indication whether the terms of the proposed Will reflect the likely testamentary intentions as the proposed testator was once able to give effect to their wishes and views.
An application supported by affidavit evidence must be served upon any person who may have an interest in the proceedings and will include any family members who would otherwise benefit under intestacy laws.
All of Luciano and Vlasta’s family members were served with proceedings and have had the benefit of legal advice; it was inferred they were content for the Court to make the proposed Will. Luciano had no contact or communication with one of his children for 30 years. After consideration, the Court dispensed with the need to serve proceedings upon her.
The Court was satisfied that the instructions Luciano gave to his solicitor in late 2019 for the making of a new will were reflected by the terms of the proposed will. The applicant established that it was reasonable in all the circumstances to make the orders sought. Although the estate is substantial, and the proposed Will leaves Luciano’s entire estate to Vlasta if she survives him. The Court was satisfied that would have been Luciano’s testamentary intention if he now had capacity.
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