Gerovich v Gerovich [2021] WASC 77

15 August 2022

This case considered the extent to which a person can be deemed to have ‘knowledge and approval’ of the contents of their will, notwithstanding that they might suffer from physical and even cognitive limitations and infirmities. Ultimately, however, the question as to whether a will is valid on the basis that the will-maker ‘knew and approved’ of its contents, turns on its own facts.

The deceased executed her final will in 2014, the validity of which was disputed by one of her adult children. Interestingly, her son abandoned a claim that she lacked testamentary capacity, but he did lead evidence in relation to her physical and mental condition, insofar as it was considered to be relevant to the issue of the deceased’s knowledge and approval of the 2014 will and her intention. He also sought an order in favour of the validity of her earlier 1975 will.

The son argued that at the time that the deceased provided instructions to the solicitors for the drafting of the 2014 will, she was subject to numerous limitations or infirmities which included deficits in language and visual and auditory impairments. Moreover, on the date of the execution of the 2014 will, the son argued that the deceased did not have an opportunity to read the document, nor was she given proper independent legal advice about the will. He also argued that the circumstances involving the particular dynamics in the relationships that the deceased had with him and his siblings rebutted the presumption as to the deceased’s knowledge and approval of the contents of the 2014 will or her intention that it constituted her last will and testament.

The Court considered there to be sufficient evidence to form a ‘well-grounded suspicion or doubt as to whether the will expresses the mind of’ the deceased, so as to rebut the presumptions of knowledge, approval and intention, and to create an onus on the contradictor of the will to affirmatively establish that the deceased knew and approved of the contents of the will.

Notwithstanding the identification of mild dementia, as the deceased’s doctor put it, she had ‘good executive mental function at the time’ and ultimately, the court was satisfied that the deceased did in fact know and approve of the contents of the 2014 will, and that she intended it to be her last will and testament.

The Court also considered that the quality and scope of the deceased’s instructions to the solicitor in respect of the 2014 will attested to the fact that her mental and physical condition did not impede her capacity to know, understand and approve the contents of the 2014 will. In this regard, the Court found that she had the capacity, and clearly exercised it.

The Court was critical of the plaintiff son’s conduct of the case, in particular the late abandonment of the lack of testamentary capacity claim.

This article was written by Simon Crawford, Partner, Angela Liaskos, Senior Associate and Jinny Guo, Law Graduate.

Subscribe to HWL Ebsworth Publications and Events

HWL Ebsworth regularly publishes articles and newsletters to keep our clients up to date on the latest legal developments and what this means for your business.

To receive these updates via email, please complete the subscription form and indicate which areas of law you would like to receive information on.

Contact us