21 October 2019
The significance of solicitor evidence in Will cases about testamentary capacity: the NSW Court of Appeal’s decision in Drivas v Jakopovic
This article was originally published by the Retirement and Estate Planning Bulletin.
Cases in which a Will-maker’s testamentary capacity is challenged are becoming more frequent. With an ageing population, which will bring with it an increase in age-related diseases, including cognitive deficiencies impacting capacity, cases contesting testamentary capacity will continue to increase.
In the recent NSW Court of Appeal decision of Drivas v Jakopovic, the Court of Appeal confirmed the primary judge was correct in placing weight on a solicitor’s evidence of practice concerning the execution of Wills in circumstances where the solicitor had no actual recollection of the matter and there was no contemporaneous evidence besides time stamps on the Will. The solicitor’s evidence was preferred over the expert evidence of medical professionals. This case reinforces the Will-drafting solicitor’s central role in determinations of testamentary capacity and highlights the issues medical professionals may encounter in applying the legal test for testamentary capacity.
Marija Jakopovic (deceased) signed a Will on 10 September 2007 leaving her property equally to her two children, Boris and Branka. Under that Will, Boris’ children would take his share, if he predeceased the deceased. Branka’s children would not receive her gift in the event she died before the deceased.
A Will signed a few months earlier, in May 2007, made unequal provision for both Boris (40%) and Branka (60%) and allowed their children to take their parents’ respective shares in the event either of them had predeceased the deceased. The substitute provision was similar to a Will the deceased had executed in 1998, only in that Will, the estate was equally gifted to Boris and Branka.
The deceased died on 28 September 2015. Branka had died unexpectedly in 2011. Her daughter, Anita, argued the September 2007 Will was invalid because the deceased lacked testamentary capacity.
The Will-maker’s capacity
Evidence introduced by Anita (the plaintiff at first instance and the appellant) suggested the deceased’s capacity was questionable from about April 2007. She later sought administration of the 1998 Will.
A CT scan performed in October 2006 showed the deceased suffered from vascular disease consistent with dementia. In about April 2007, the deceased’s general practitioner referred her to a neurologist, Dr Beran, who prescribed the deceased medication used for the treatment of Alzheimer’s. Memory tests conducted on the deceased’s admission into a nursing home in May 2007 were also introduced to evidence. As was the report of Dr Kathy Watson of late May 2007, which summarised the deceased as having “developed cognitive impairment…”
By June 2007, when the deceased was taken to Queensland by Boris as a result of having been placed in a nursing home by Branka against her will, Boris caused the deceased to see general practitioner, Dr Steinohrt, who prescribed the deceased Risperdal, a psychotropic medication used to treat paranoia and aggression, behaviours associated with dementia.
The expert evidence
The plaintiff sought expert evidence from Dr Beran, who saw the deceased in April 2007 and twice in 2009 (for Guardianship Tribunal proceedings commenced by Branka). He concluded in a report dated September 2016, answering questions which addressed the test in Banks v Goodfellow :
“…evidence of serious and advanced dementia with an MMSE score of 18 out of 30. From that time forward I would doubt her competence to appropriately understand the ramifications or content of her new will…”
“I doubt the patient was sufficiently competent to appreciate the extent of her assets.”
“Her revocation of the previous Will brings into serious doubt her appreciation of the ramifications of her actions and the consequences thereof.”
Dr Rosenfeld prepared a retrospective report for Boris’ solicitors in June 2017. Dr Rosenfeld concluded the deceased did not have testamentary capacity at the time she made the May 2007 Will.
In respect of the September 2007 Will, Dr Rosenfeld’s opinion was:
“In my view, taking into consideration the likelihood, outlined in the medical documents, that the deceased was suffering from cognitive impairment, suffered from memory dysfunction and likely executive thinking impairment, and did not specifically refer to her grandchildren by name in this or her previous wills, that the deceased was more likely than not unable to properly consider and compare the relative merits of her grandchildren in determining her wishes regarding this will.”
The solicitor’s evidence
Mr Taylor, the solicitor who drafted and witnessed the September 2007 Will, gave evidence that he had no independent recollection of conferring with the deceased or drafting the documents she signed in 2007 (which included a power of attorney and enduring guardian).
By 2007, Mr Taylor had been in practice for over 30 years. He did not have file notes or letters confirming the advice given to the deceased at the time she signed the various documents. The Will had time stamps which indicated Mr Taylor had spent approximately 1.5 hours with the deceased. Mr Taylor told the Court his normal practice when seeing elderly clients to draw powers of attorney, enduring guardianship appointments and wills was:
he attended on the client alone;
if attending to clients in hospital, he would draft documents in advance but only had them signed if instructed to do so and he was satisfied the client was able to properly give instructions;
he was aware of the test in Banks v Goodfellow ;
if he had reservations about the client’s testamentary capacity, he made detailed notes about the conversation with the client, which would be kept in safe custody with the Will;
if there was a risk of a family provision claim against the estate, he advised the client of the risk and had the client sign a document acknowledging the advice provided and setting out the reasons for making gifts or exclusions in the Will, that would be retained in safe custody; and
the clause differentiating the substitution of Branka’s gift with Boris’ was not his normal drafting practice and he would only have included it if specifically instructed to by the client.
The decision in the first instance 
Justice Parker utilised Mr Taylor’s evidence of usual practice and the time-stamped document to infer the likelihood of events in relation to the deceased and the signing of the September 2007 Will and held the evidence overall did not support the position that the deceased lacked testamentary capacity when she signed the September 2007 Will.
Justice Parker said:
“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: Re Crooks Estate (Unreported, Supreme Court of New South Wales, Young J, 14 December 1994) at 29; Hamilton v Nelson  SASC 219 at .
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…”
In his remarks about Mr Taylor’s evidence, Justice Parker said:
“Mr Taylor’s evidence was challenged in cross-examination. But in my view it was unshaken, so far as it goes. I accept that Mr Taylor would have followed his usual practice in dealing with the deceased. There is nothing to suggest that Mr Taylor acted otherwise than in good faith and with proper vigilance for the deceased’s interests. In particular, I accept that Mr Taylor would have seen the deceased on her own to obtain instructions. The time stamps on the different pages of the will showed that it was prepared over a period of at least an hour and a half. That supports the view that proper instructions were received, and advice given, on its terms.”
His Honour found the experts did not properly apply the test for testamentary capacity because:
with respect to Dr Beran’s opinion, the only factual observation made in support of his opinion was that he observed a good relationship between the patient and her daughter; and
with respect to Dr Rosenfeld’s report, the decisive matter was the lack of reference in the Will to the grandchildren’s names and the generalised evidence of cognitive impairment.
The Court of Appeal
The issues on appeal were:
Whether the primary judge erred in giving weight to Mr Taylor’s evidence and failed to give proper weight to the medical evidence?
Whether the deceased knew and approved of the terms of the September 2007 Will?
The Appeal was dismissed and the Court held:
the primary judge was correct to give significant weight to Mr Taylor’s evidence and no significant weight to the expert medical evidence; and
the judge at first instance was correct to treat Mr Taylor’s evidence as establishing that the deceased knew and approved of the contents of the Will.
The reasons given by the Court of Appeal are summarised as follows:
evidence of practice is admissible and can, in the right circumstances, be given considerable weight;
a general description of the nature of practice does not render the evidence inadmissible;
Dr Beran’s conclusory evidence cannot be regarded as of any significant weight because:
“It was based on facts of which he was insufficiently apprised and, in interpreting the facts as he thought they were, he was not drawing on his expertise in a field of specialised knowledge.” 
the judge at first instance was justified in treating Dr Rosenfeld’s evidence similarly, because Dr Rosenfeld made assumptions and inferences about matters of fact outside his field of expertise;
the judge at first instance was correct to infer from Mr Taylor’s evidence of practice and the time stamps on the Will the amount of time he spent with the deceased which influenced the conclusion the deceased knew and approved the contents of the Will;
the evidence, when considered as a whole, provided ample basis for the Court to be satisfied there were no suspicious circumstances and the deceased knew and approved the contents of the Will;
as a result of that, Boris’ conduct (which Anita’s legal representatives argued contributed to suspicious circumstances) was not required to be further examined; and
in response to the issue in contention that the judge at first instance failed to properly evaluate evidence relevant to Boris’ credit and to make adverse findings concerning that credit further to those which he did make – it was held it was not necessary for the judge to make findings concerning Boris’ credit because he did not need to rely on his evidence to reach the conclusions he did on the issue of testamentary capacity.
The importance of experience and established practice
In this case, the Court has clearly demarcated the significance of the experienced solicitor’s evidence in determining testamentary capacity in comparison to the retrospective medical expert evidence. General evidence of the solicitor’s usual practice and experience at the time the Will was drafted and signed was crucial and there was no requirement for contemporaneous file notes to prove the actual instructions received and advice given by the solicitor to his Will-making client.
The Court highlights the inherent difficulties of medical professionals providing retrospective opinions with respect to the legal test of testamentary capacity which requires an application of facts to law. The Court subtly suggests such evidence be treated with caution.
Implications for practice – what does this Court of Appeal decision mean for solicitors and others who draft Wills?
This decision was specific to the facts of the case. Nevertheless, it is probably not a prudent approach to rely on your usual practice especially if you have not had a great deal of experience in the area of wills, estate planning and dealing with elderly clients.
The established risk-management procedures in relation to possible testamentary capacity claims, especially in the context of an ageing population, still need to be followed.
These procedures include:
detailed file notes of instructions in relation to Wills which should be stored electronically and/or a hard copy with the Will in safe custody;
file notes should indicate the length of the meeting with the Will-making client and the issues covered;
where testamentary capacity is an issue, the file note needs to address the legal test in Banks v Goodfellow;
where testamentary capacity is an issue, a letter should be obtained from a long-standing general practitioner or a geriatric specialist about the Will-maker’s capacity to satisfy the legal test in Banks v Goodfellow; and
incorporating technology where appropriate – including voice or video recording – with the consent of the Will-maker to accurately record interviews, advising the Will-maker that the purpose of the recording is to protect his/her testamentary intentions from challenge
Authors: Gerard Basha and Danielle Verde
 (1870) LR 5 QB 549.
 Drivas v Jakopovic  NSWSC 1803 at .
 Ibid, at .
 (1870) LR 5 QB 549.
 Drivas v Jakopovic  NSWSC 1803
 Ibid at  and .
 Ibid at .
 Drivas v Jakopovic  NSWCA 218 at .
 (1870) LR 5 QB 549.