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NEWS > SPRING 2003
Dementia denies validity of will
A recent Supreme Court case has rendered invalid a will made by an 85 year old woman suffering significant dementia, despite accepting evidence indicating that the woman did exhibit periods of lucid thought.
In Vosahlo v Kantor & Anor [2003] VSC 81, the deceased died at the age of 88 years. She left a will dated 26 May 1999 in which she appointed the defendants as executors. One of the executors was a solicitor and the other was an accountant. Evidence revealed that both executors were longstanding family friends of the deceased and looked after her professionally and personally. In the will, which was prepared by the solicitor friend, the deceased left a sum of money to a charity and the residue of her estate to another friend of her late husband and herself.
The brother in law of the deceased brought proceedings seeking an order revoking the grant of probate of the will on the ground that she did not have testamentary capacity at the time of making it.
The deceased was born in Eastern Europe in 1913 where she married her husband. Both the deceased and her husband came to Australia in the early 1950s. They had no children. Later, in 1952, the deceased's brother in law and his wife and family joined the deceased and her husband in Australia. The deceased's husband died in 1990 and, thereafter, the deceased lived alone in the family home until she was hospitalised in March 2001, some months before her death.
Following the death of the deceased and the grant of probate of the will, two nieces of the deceased brought proceedings pursuant to Part 1V of the Administration and Probate Act 1958. In support of their application, they referred to an earlier will made by the deceased dated 12 March 1996, under which she left one third of her estate to her brother in law. The brother in law was unaware of the existence of the earlier will until these proceedings were brought and, as a result, he became suspicious of the validity of the later will because of the obvious difference in contents.
In determining the issue of the testamentary capacity of the deceased, the executors revealed to the court that the deceased had, in fact, made four prior wills - 29 April 1990, 29 October 1990, 9 April 1992 and 12 March 1996. In each of these wills, the appointment of the executors remained the same. In addition, both executors were of Czech origin and involved in the Czech community in Victoria. Both were able to converse with the deceased in her native tongue and were convinced of her rationality and intentions in the making of her wills.
In challenging the validity of the will, the plaintiff produced medical evidence from medical personnel who treated and cared for the deceased including a consultant neurologist, general practitioner, occupational therapist and nursing staff. Medical evidence revealed that the deceased suffered from Parkinson's disease, short term memory impairment and vagueness indicating the presence of significant dementia in the year leading up to the making of the will and for several weeks thereafter. The deceased's occupational therapist noted that the deceased was unable to understand or complete an Aged Care Application form presented to her six weeks after the execution of the will.
Faced with the significant body of medical evidence, the court concluded that the deceased did not have testamentary capacity at the time of making the will because she was suffering from significant dementia. Although, the court accepted the defendants' evidence that the deceased experienced periods of lucid thought, it did not alter its decision that she lacked testamentary capacity, making the will invalid.
This case serves as a timely reminder to ensure that a person making a will has the necessary testamentary capacity to do so. In an era when we are living longer and mental illnesses such as dementia are more commonplace, we need to be aware of the issues illnesses like these raise on the validity of wills and other legal documentation. If you have an elderly relative suffering from dementia, you should seek legal advice before assisting them in the making of a will or power of attorney.
Disclaimer:
The information in this newsletter is not intended to be a complete statement of the law relating to the issues raised. Accordingly, no person should rely on this information without first obtaining specific advice from our office. | 
