Drivas v Jakopovic

The proceeding concerned an appeal from a decision of the Supreme Court of New South Wales regarding the testamentary capacity of the deceased, Mr. Jakopovic. The appellant, Mr. Drivas, sought to challenge the validity of the deceased's will, alleging that the deceased lacked the necessary mental capacity at the time of its execution. The respondents, the beneficiaries under the will, sought to uphold its validity. The appeal was heard by Bell ACJ, Macfarlan and McCallum JJA of the Court of Appeal of the Supreme Court of New South Wales.

The central legal issues before the Court of Appeal were twofold. Firstly, the court was required to determine the appropriate weight to be given to conclusory expert medical evidence when assessing whether a deceased person possessed testamentary capacity. Secondly, the court had to consider the weight to be attributed to the evidence of a solicitor regarding their usual practice and procedures when overseeing the execution of wills by clients.

The Court of Appeal affirmed the principles that while expert medical evidence is valuable, it is ultimately for the court to determine the legal question of testamentary capacity based on all the evidence. The court also considered the weight of a solicitor's evidence of practice, referencing authorities such as *Connor v Blacktown District Hospital* [1971] 1 NSWLR 713, in assessing the reliability of their testimony concerning the circumstances of the will's execution. The court found no error in the primary judge's assessment of the evidence and the application of the relevant legal tests for testamentary capacity.

The appeal was dismissed with costs.