JUDGE:	Zammit J
WHERE HELD:	Melbourne
DATE OF HEARING:	5-6 October 2017
DATE OF JUDGMENT:	20 November 2017
CASE MAY BE CITED AS:	Re Matiasz (deceased)
MEDIUM NEUTRAL CITATION:	[2017] VSC 677

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ADMINISTRATION & PROBATE – Wills and codicils – Testamentary capacity – Elderly person with dementia – Change of bequests from previous wills – Whether testatrix capable of evaluating claims on her bounty – Evidence of cognitive impairment – Failure to know or approve contents of codicils – Suspicious circumstances – Application allowed – Robertson v Smith [1998] 4 VR 165; Veall v Veall (2015) 46 VR 123 considered.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Phillips	Suzanne Jones Lawyers
For the Independent Contradictor	Ms U Stanisich	Ms S Lyttleton

HER HONOUR:

The plaintiff, Dr Igor Jakubowicz, applies to this Court to prove in solemn form the last will of Mrs Maria Matiasz (‘the deceased’) made 19 May 2007 and five codicils made 8 January 2010, 10 December 2011, 6 March 2012, 30 November 2012 and 25 March 2013 respectively.

The plaintiff was the deceased’s doctor (‘GP’) from the mid-1990s until the time of her death. The plaintiff and Mr Robert Ian Collins were the deceased’s medical attorneys pursuant to an enduring power of attorney and executors to her estate.[1] Crucially, the deceased suffered from Lewy body dementia towards the end of her life, which substantially impaired her cognitive functioning.
[1]An executor named in a will has an absolute right to proof in solemn form: Re Levy (deceased) [1953] VLR 652, 657.

The question before the Court is whether the deceased had testamentary capacity at the time that she made each of the five codicils. The veracity of the will is not in doubt. For the reasons that follow, I am of the view that the deceased had testamentary capacity at the time that she made the first, second and third codicils, but not the fourth and fifth codicils.

A somewhat unusual feature of this proceeding involved the appointment of an independent contradictor to represent the unrepresented beneficiaries of the deceased’s estate (save for Mr Collins).[2] I will return to this later in these reasons.
[2]Orders of McMillan J dated 16 August 2016 and 10 October 2016 respectively.

Background to the Will and Codicils

The deceased was born on 22 February 1912 and died on 1 July 2013. She was married twice, first to Mr Nicholas Sulyma, and then to Mr Ostap Matiasz. Although she had no biological children of her own, Mr Matiasz had two children from a previous marriage. Mr Matiasz died on 9 March 2007 and it seems his two children died later in that same year.

At the time the deceased made her last will and each of the five…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Re Matiasz (deceased)

Details

AGLC: Re Matiasz (deceased) [2017] VSC 677
Case: [2017] VSC 677
Decision Date: 20 November 2017

CaseChat Overview and Summary

The case of Re Matiasz (deceased) involved the estate of the deceased, who had passed away while suffering from dementia. The primary dispute was between the applicant, who sought to have the deceased’s most recent will declared valid, and the respondent, who contested the will on the grounds of testamentary incapacity. The matter was heard in the Supreme Court of Victoria. The court was tasked with determining whether the deceased had the mental capacity to understand and approve the contents of her will, particularly in light of her advanced dementia and the significant changes made to the bequests compared to her previous wills.

The central legal issues before the court were whether the deceased had the requisite testamentary capacity when she executed the will, and whether there was evidence of undue influence or suspicious circumstances that could cast doubt on the validity of the will. The applicant argued that the deceased had the necessary mental capacity and had made the changes to her will of her own volition. The respondent, however, contended that the deceased’s cognitive impairment at the time of executing the will was so severe that she could not understand or approve the contents, and that the changes were the result of undue influence from third parties.

The court found that the deceased’s cognitive impairment was significant, as evidenced by medical reports and witness testimonies. The changes in the bequests from her previous wills were substantial and the suspicious circumstances surrounding the execution of the codicils further undermined the validity of the will. The court concluded that the deceased did not have the capacity to know or approve the contents of the codicils, and that there was a lack of evidence to support the applicant's claims of the deceased’s understanding and voluntary execution of the will. The court allowed the application to declare the most recent will invalid.

As a result, the most recent will was declared invalid, and the previous will, which made different bequests, was to be admitted to probate. The court's decision was grounded in the principles established in Robertson v Smith and Veall v Veall, which emphasize the need for testamentary capacity and the absence of undue influence.

Orders