In 2023, we represented a solicitor who recorded the execution of a Will prepared for a 90 year old woman of Greek heritage, the late Kalliopi Siapantas. He was subsequently appointed executor and obtained a grant of that Will in solemn form, after satisfying the Supreme Court of Victoria that Mrs Siapantas had the requisite testamentary capacity to provide instructions and to execute a binding, valid Will. Whilst it has long since been accepted that the test for testamentary capacity is a legal (and not a medical) test, a solicitor may act prudently to seek medical clearance for their client, to inform their legal assessment. Mrs Siapantas’ solicitor did so, having obtained the medical opinion of a neuropsychiatrist who assessed Mrs Siapantas prior to the execution of the Will in question. Her solicitor in fact went one step further, and arranged for a professional videographer to then record his conference with Mrs Siapantas going through the terms of her Will and witnessing her execution of it.
The solicitor had the foresight to take these steps to mitigate against later challenges to Mrs Siapantas’ Will. He was right to do so, because an administrator had been appointed to manage Mrs Siapantas’ financial affairs during her lifetime, which was the subject of ongoing dispute and acrimony within the family.
At the hearing for the probate application, Gorton J commented that he was impressed with the video recording, which he ruled:
“revealed an elderly lady who was able to identify her assets and give clear and plausible reasons for which she wished to divide her assets among the different members of her family in the way provided for in the will. She spoke clearly and with confidence. The terms of the will were explained to her, and the deceased appeared to understand the explanation and conveyed that the will reflected her wishes. She appeared to have good concentration and cognitive function; certainly, there was nothing that indicated to the contrary. For example, there was an occasion where she corrected [the solicitor] on the ages of her two grandchildren.”
Notwithstanding that the recorded conference was conducted almost entirely in the Greek language, we opine that the Court was persuaded as to Mrs Siapantas’ testamentary capacity because the footage captured nuances in her discussions with her solicitor that might not otherwise have been captured in a traditional solicitor’s file note. These may have included the level of engagement in the discussions, the incidental oral exchanges between them and her body language.
There are encyclopaedic references to Wills dating back to ancient Greece. This is not a new practice. In fact, the seminal and classical test of testamentary capacity that remains relevant today, having been reaffirmed in a number of modern cases, is that cited in Bank v Goodfellow (1870) LR 5 QB 549. That said, we are in a world today with ever improving technology and the artificial intelligence movement. Old practices must evolve and adapt. There may even come a time when the humble pen and paper will simply ‘not cut it’ in the face of testamentary and probate challenges. To that end, solicitors ought to be open, and even embrace digital precautions to place a Will-maker in the most secure position possible to give effect to their testamentary intentions. Whether that be video footage, like in Mrs Siapantas’ case, or a new wave of technology in years to come.
Whilst there is currently no ‘foolproof’ method to guarantee the validity of a Will, or to guard against foreshadowed or anticipated family provision claims, it will be interesting to see in years to come whether technology can be an effective tool to mitigate the risk, and reduce the number of judicial disputes over Wills and estates.
This article was written by Simon Crawford, Partner and Angela Liaskos, Senior Associate.
