Does Living with Dementia Preclude the Possibility of Making a Valid Will?

When a person makes a Will, or changes an existing one, they have to understand what they are doing for it to be valid. This is the essence of testamentary capacity. For a century and a half, the benchmark test for having the mental capacity to make a valid Will, in common law jurisdictions such as NSW, has been based on the nineteenth-century English case Banks v Goodfellow (1870). Banks concerned an individual who suffered delusions but whose Will was held to be valid because the delusions did not interfere with his ability to comprehend what he was doing when he made his Will.

Whether this principle can be applied to people living with dementia was recently revisited in the recent NSW Court of Appeal case of Drivas v Jakopovic (2019) NSWCA 218. A deceased’s Will was challenged on the grounds that the author lacked the necessary capacity to validate her Will. The case also demonstrates that the evidence of an attending solicitor to testamentary capacity cases can be crucial.

With an ageing population, and often larger estates than in the past, challenges to a Will are becoming more frequent.

The Will Challenged

Marija Jakopovic died in September 2015, aged 82. She had signed her last Will in September 2007 which changed one made as recently as May 2007. This, in turn, replaced one from 1998. The two beneficiaries were her son and daughter, Boris and Branka. Boris's share would pass to his children if he predeceased his mother, but Branka's would not.

In 2011, Branka daughter died unexpectedly, leaving behind a daughter, Anita. Anita, challenged the September 2007 Will as invalid on the grounds of a lack of testamentary capacity. Earlier Wills would have allowed her to inherit her deceased mother's share.

In Court, the medical evidence presented suggested that the deceased had been suffering from a lack of capacity at the time she made her last Will. A CT scan, undertaken in October 2006, had shown the deceased suffered from vascular disease consistent with dementia. Amongst the medical evidence introduced were memory tests and a doctor's report from May 2007, which concluded that she had developed cognitive impairment.

However, the legal test for capacity is not the same as the medical test. The legal test, based on Banks, is that a person has testamentary capacity if, at the time of instructing a solicitor, they understood the nature of what a Will is, what constituted their estate, and appreciated who they ought to leave their estate to. Additionally, they should have no disorder of the mind preventing them from disposing of their property in a way different from what they would otherwise have done.

The instructed solicitor, Mr Taylor, had some 30 years’ experience in preparing Wills. It was his standard practice that, if the Will-maker's mental capacity was in any doubt, he would take notes of the meeting. When asked about drawing up the Will, he could not recollect his dealing with Ms Jakopovic, and he had not kept a file note of the meeting. There was evidence that Mr Taylor had seen her for one and a half hours which was plenty of time to take instructions. Not having taken notes suggested he was not concerned about her mental capacity at the time. The judge commented:

Mr Taylor was an experienced solicitor who apparently detected no difficulties with the deceased’s testamentary capacity when he prepared her will. That, in itself is valuable evidence which favours a finding upholding the will ...Given these considerations, I am satisfied that the deceased knew that she was making a will and knew what the effect of doing so would be. 

The case was dismissed but was then appealed.

The Appeal

The Court of Appeal had to decide, firstly, if the primary judge had erred in giving more weight to the solicitor’s evidence compared to the medical evidence. Reaffirming the principle that a solicitor’s evidence is significant, the Court quoted Judge Young in Re Crooks Estate (Supreme Court NSW 1994, unreported):

… (a)n experienced solicitor or solicitor’s secretary gets used to dealing with people making wills and are usually attuned to the red lights that flash when a person who is of suspect capacity comes across their paths [sic]... 

Secondly, did the deceased know and approve of the September 2007 Will? The Court agreed with the primary judge that there was sufficient evidence that Ms Jakopovic had the testamentary capacity to make her September 2007 Will valid.

The appeal was dismissed.

What Does It Mean?

Whether a person living with dementia can make or change their Will is not straightforward, but it is clear it is not impossible. The issue is not so much the general state of the Will-makers health but the level of understanding they displayed at the specific time they instructed their solicitor. The case reaffirms:

• -the importance of lay evidence though this should not be interpreted as a preference. All the evidence will be looked at, including the medical evidence;
• the importance of the need for the involvement of an experienced estate planning solicitor who will be aware of what to look for if there is any doubt as to a client's mental capacity;
• the weight given to a solicitor’s evidence about testamentary capacity is valuable and can be crucial;
• the importance of established practice and procedures of the solicitor taking instructions.

Cases of this sort provide a reminder to keep a Will up to date.

Contact Our Wills and Estate Lawyers Sydney, NSW

Szabo & Associates Solicitors are experts in all aspects of estate planning and the preparing, updating and contesting of Wills. Please contact us on (02) 9046 8466 or fill in the online contact form.