Drivas v Jakopovic [2018] NSWSC 1803

In 2007, Marija Jakopovic made a will leaving 60 percent of her estate to her daughter, Branka, because of the daily attention to her needs. She received treatment from a neurologist for dementia, obtained a Mini Mental score (MMSE) of 18/30 and consequently was admitted to the dementia unit of a nursing home. Marija became distressed as she was detained against her will and blamed Branka for the admission.

Marija complained to her son, Boris, appointed him as her attorney, saw another doctor who prescribed psychotropic medication, she scored 21/30 on the MMSE and subsequently returned home. She then made a new will leaving her estate equally to her two children, Branka and Boris. The will provided that if Boris predeceased her leaving children surviving her, those children took their father’s share. However, the will did not mention the similar provision for Branka. Branka predeceased Marija in 2011, Marija died in 2015 and consequently Boris inherited the entire estate. Branka’s daughter brought proceedings against Boris with expert evidence challenging that Marija lacked testamentary capacity when she made her last will.

The Supreme Court of New South Wales noted that the solicitor who prepared the last will 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. In other words, the last will was found to be validly made.

Take away of Jakopovic’s Case

A will is one of the most overlooked documents by people aged in their 30s and 40s who have accumulated a reasonable amount of wealth and tend to leave the preparation of their will on the “backburner”.  As demonstrated in the above case, a will is challengeable in court should the testator lack testamentary capacity at the time of making his/her last will. We recommend you have your will prepared and executed as early as possible to avoid any unnecessary dispute amongst your beneficiaries.

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