Apolonia had two children, Zina and Basil, who contested a Will that she had signed in an operating theatre in early January 2020, three weeks before she died at the age of 92.
Prior to her scheduled surgery, Apolonia refused consent to the operation unless she could make a new Will. So the doctors wrote out a document at the hospital to give effect to what they understood she had said to them and they titled the document “Change of Will”. Apolonia signed this document on 9 January 2020, which had bequeathed the most substantial part of her estate (her home) to Basil. Apolonia later underwent surgery, which she survived, but then died three weeks later on 28 January.
Zina sought a declaration from the Supreme Court that the “Change of Will” document signed on 9 January was of no legal effect and contended that her mother lacked testamentary capacity when she executed it. Zina submitted to the Court that Apolonia did not know and approve its contents.
When the Court was determining whether Apolonia knew and approved the contents of the document, it took into account the following factors: the mental acuity and sophistication of the testator, whether the Will constituted a significant change from a prior Will, the circumstances surrounding the preparation of the new Will, the complexity of the Will and the estate being disposed of, the exclusion or non-inclusion of a person who might naturally having a claim on the estate, whether the new will generally seemed to make testamentary sense and also whether Apolonia had had an opportunity in the preparation and execution of the Will for reflection and independent advice.
One of the other significant factors that the Court took into consideration in this particular case was the amount of medication that had been administered to Apolonia prior to her surgery. It was agreed that a number of medications were given to her between 1.57pm and 5.32pm on the day she signed the new will, which included midazolam, fentanyl and Endone.
The Court ultimately agreed with Zina that Apolonia did not have the mental capacity to make a decision at the time and did not understand what she was signing. As such, the original Will stood, leaving the whole estate to the two children equally.
This case serves as a reminder to us that all of the circumstances surrounding the signing of a new Will are taken into account when a Court is trying to determine the validity of that Will. Don’t let this happen to your family. Get your Will done properly by a lawyer experienced in Estate Planning.
