Pre-operative change of will challenged

“Darkness and suspicion are common features in will cases: the truth too often is the secret of the dead or the dishonest. Because it is often difficult, and sometimes impossible, to discover the truth, the law insists on two types of safeguard in will cases. The first type of safeguard is … the requirements of proper form and due execution. Such requirements … are no mere technicalities. They are the first line of defence against fraud upon the dead.

The second type of safeguard is the second line of defence. It is invoked where there are circumstances which give rise to suspicion; it is the safeguard of strict proof. In cases where no suspicion reasonably arises the court will allow inferences … to be drawn from the regularity of a testamentary instrument upon its face, or the fact of due execution. But if there are circumstances, whatever be their nature, which reasonably give rise to suspicion, the court must be on its guard. It must ensure that the burden of proof rests upon the party propounding the will: and “[the propounder] must satisfy the conscience of the court that the instrument so propounded is the last will of a free and capable testator.’”

IN THE ESTATE OF FULD, DECD. (No. 3); HARTLEY AND ANOTHER v. FULD AND OTHERS(ATTORNEY-GENERAL INTERVENING) 2 WLR 717; [1965] 3 All ER 776; [1968] LRP 675; 1968 P 675

In Dybac v Czerwaniw; The Estate of the Late Apolonia Czerwaniw [2022] NSWSC 1279 Zina Dybac and Basil Czerwaniw contested the validity of the will document their mother Apolonia Czerwaniw signed in the operating theatre in early January 2020 three weeks before she died.

Background

In early January 2020 following years of medical problems Apolonia was admitted to hospital to relieve a vascular obstruction in her right leg. After undergoing two sets of unsuccessful procedures to restore blood flow to the leg Apolonia was scheduled for more serious vascular surgery at about 8 pm on January 9 2020.  At around 2 pm Apolonia was given anaesthetic agents and other drugs.

Immediately before her surgery, Apolonia refused to consent to the operation unless she could make a will. The attending doctors wrote out a document that left her house to her son, Basil and entitled the document ‘change of will’. The attending doctors witnessed the execution of the document in accordance with section 6 of the Succession Act 2006. 

The doctors did not raise any questions about Apolonia’s estate, her family or any other beneficiaries. Importantly when writing the document the doctors were unaware that Apolonia had two children.

The change of will document contrasted with Apolonia’s previous wills and codicils. Her will of 2005 and the codicil of 2009 had divided her property equally between Zina and Basil as had an informal testamentary document executed in 2018. Additionally, the Change of Will document did not effectively dispose of the entirety of Apolonia’s estate and would not fully replace Apolonia’s 2005 will and the 2009 codicil.

Moreover, the practical effect of the Change of Will document is to give virtually all of Apolonia’s estate to Basil. It would have made sense for Apolonia to revoke Zina’s appointment as her executor and appoint Basil in her place. But due to the fast pace of events in the operating theatre and lack of legal advice, this did not happen.

Appolonia survived the surgery however she died on 28 January 2020 of other complications related to her vascular obstruction.

The matter

Zina contends that Apolonia lacked testamentary capacity when she executed the 9 January 2020 Change of Will document or alternatively that she did not know and approve its contents. She seeks the admission to probate of the 2005 will, in which she is named as executrix, and the 2009 codicil.

Basil seeks a grant of letters of administration with the will annexed, of the Change of Will document, contending that Apolonia knew and approved its contents and that she had testamentary capacity at the time of its execution.

The parties accept that the 2005 will and the 2009 codicil are valid testamentary documents executed by Apolonia; if the Change of Will document is found not to be Apolonia’s last will, they agree to the admission to probate of the 2005 will and the 2009 codicil.

The decision

The Court held that the speed and force of Apolonia’s decision to change her will was remarkable. Basil denied that he had discussed changing the will with his mother before leaving her in the anaesthetic bay at about 7.00 pm. However, the Court believed the notion that the first time Apolonia wished to alter her will occurred after 7.00 pm and that she was prepared to veto life-saving surgery indicated a disturbance in her normal patterns of behaviour and thinking about important life decisions was affected by the

‘quantity of medications administered to Apolonia would be likely [to] have had a substantial effect upon her reasoning and judgment when she executed the Change of Will document, or at least that cannot be excluded on the balance of probabilities’

Dybac v Czerwaniw; The Estate of the Late Apolonia Czerwaniw [2022] NSWSC 1279 at 249

The Court considered the countervailing consideration that when Apolonia was presented with unexpected and potentially risky surgery following the failure of two other procedures in which she would be placed under a general anaesthetic at an advanced age may have prompted the idea that had been in existence for a long time.

However the evidence of the expert anaesthetists about two fundamental characteristics of the medications, their half-life and their pharmacokinetic and pharmacodynamic effects were relevant to the conclusion that the Court was

‘ unsatisfied that she was of sound mind, memory and understanding when she executed the Change of Will document’

Dybac v Czerwaniw; The Estate of the Late Apolonia Czerwaniw [2022] NSWSC 1279 at 249

as a result, the change of will document was not admitted to probate.

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