How do you determine whether a person had testamentary capacity at the moment they prepared their will? In Drivas v Jakopovic  NSWCA 218, such a dispute made its way to the NSW Court of Appeal. The Court had to balance the evidence of the solicitor who drafted the will against medical tests and expert medical opinions. In doing so, the Court has reaffirmed the significant weight that is to be placed on lay evidence in determining the question of testamentary capacity.
The death of a loved one is difficult, and disputes about that loved one’s estate can make this all the more so. Disputes concerning testamentary capacity can be emotionally charged, drawn-out, and factually complex. In recent years, the prevalence of estate disputes has increased for many reasons, including the ageing population, the increase in life-expectancy leading testators to live longer than their mental faculties, and the increase in the average size of estates (driven by the increasing value of real estate).
In Drivas v Jakopovic, the appellant disputed the will of her grandmother, and the NSW Court of Appeal upheld the decision of the primary judge who gave significant weight to lay evidence over medical evidence in determining whether the deceased had testamentary capacity at the time she made her will.
In order to create a valid will, a testator must have capacity at the time they executed it. The law on this point is well established, dating back to the decision of Cockburn CJ in Banks v Goodfellow (1870) 5 LR QB 549.
Essentially, the law requires that the testator:
If all of these elements are present, then the testator will be found to have capacity and the Court will uphold the will. Of course, this leads to an evidentiary question – how does one prove that the deceased had capacity?
This was the issue that the NSW Court of Appeal had to consider in Drivas. The case concerned the deceased, Ms Marija Jakopovic, who in May 2007 executed a will leaving her estate equally to her two children, Boris and Branka. The May 2007 Will provided that in the event either Boris or Branka predeceased their mother leaving children, then those children would take their parent’s share of the estate.
A short time later, in September 2007, Ms Jakopovic executed another will, which was substantially identical save that it removed the provision allowing Branka’s children to inherit in the event that she predeceased her mother. The provision for Boris’ children remained. As it happened, Branka predeceased Ms Jakopovic, leaving a daughter, Anita, surviving her.
Following Ms Jakopovic’s death in September 2015, the September 2007 Will was admitted to probate in common form. Anita subsequently sought probate of the May 2007 Will on the basis that, as she was suffering dementia, her grandmother lacked testamentary capacity at the relevant time.
In determining whether Ms Jakopovic had testamentary capacity at the time she executed the September 2007 Will, the Court considered evidence provided by Mr Taylor, the solicitor who drafted the will, as well as additional medical evidence.
Although Mr Taylor had no independent recollection of acting for Ms Jakopovic, he gave evidence that he had experience in drafting wills, powers of attorney and appointments of enduring guardians for elderly clients. He was aware of the Banks v Goodfellow test and stated that it was his normal practice to make detailed notes of his discussions with a client and keep those notes in the firm’s safe custody if he had reservations about whether that client satisfied the test. No such notes were included in the firm’s safe custody. He also said that the inclusion of the provision that only Boris’ share of the estate, and not Branka’s, would go to his children if he were to predecease them was not in accordance with his usual practice. He stated that he would have only included this provision if specifically instructed by the client to that effect.
With respect to the medical evidence, the Court considered a CT scan of Ms Jakopovic undertaken in October 2006 which showed she had significant vascular disease in the brain, consistent with dementia. It also considered the MMSE three tests, which are used to screen for dementia, administered to Ms Jakopovic in April and June 2007. However, the Court held that these two tests did not constitute significant evidence of testamentary incapacity given that they did not provide reliable information as to the degree or nature of the impairment. Further conclusory expert medical opinion was also provided by two doctors. However, the Court again did not give it any significant weight as it was apparent the doctors were not aware of the full facts surrounding Ms Jakopovic’s relationship with her family.
Conversely, the Court placed significant weight on the evidence of Mr Taylor for reasons including the following:
Given the evidence of Mr Taylor, the Court ultimately upheld the decision of the primary judge and determined that Ms Jakopovic did have testamentary capacity when she made the September 2007 Will.
The decision of Drivas v Jakopovic highlights the importance of lay evidence over medical evidence in determining whether a testator had testamentary capacity at the time they executed their will. Although medical evidence can indicate deterioration of brain function and mental state, there are issues when inferences are made without any consideration of the testator’s personal circumstances.
The Courts have consistently placed great emphasis on lay evidence of observations of the deceased at the time they prepared the will in question. However, what makes this case all the more unique is that it was the absence of evidence to the contrary that was persuasive. That is, the court was able to draw an inference sufficient enough to satisfy itself on the question of capacity from what the solicitor did not do, rather than what he did. That is, the failure of the solicitor to keep his notes indicated that he formed the view at the time the deceased had capacity.
Cases like this always serve as an important reminder to keep your will updated to reflect current intentions. It is also a reminder for solicitors to be diligent in satisfying themselves of the elements of Banks v Goodfellow when preparing a will for a client to ensure that the client has testamentary capacity at the time they execute their will.
McCabes has extensive experience in advising on and acting in will disputes, as well as drafting wills and estate planning. Do not hesitate to contact us if you require any assistance.
This article is not legal advice. It is intended to provide commentary and general information only. Access to this article does not entitle you to rely on it as legal advice. You should obtain formal legal advice that is specific to your particular circumstances.
In June 2023, a Canadian Court in South-West Terminal Ltd v Achter Land and Cattle Ltd, 2023 SKKB 116, held that the "thumbs-up" emoji carried enough weight to constitute acceptance of contractual terms, analogous to that of a "signature", to establish a legally binding contract. Facts This case involved a contractual dispute between two parties namely South-West Terminal ("SWT"), a grain and crop inputs company; and Achter Land & Cattle Ltd ("ALC"), a farming corporation. SWT sought to purchase several tonnes of flax at a price of $17 per bushel, and in March 2021, Mr Mickleborough, SWT's Farm Marketing Representative, sent a "blast" text message to several sellers indicating this intention. Following this text message, Mr Mickleborough spoke with Mr Achter, owner of ALC, whereby both parties verbally agreed by phone that ALC would supply 86 metric tonnes of flax to SWT at a price of $17 per bushel, in November 2021. After the phone call, Mr Mickleborough applied his ink signature to the contract, took a photo of it on his mobile phone and texted it to Mr Archter with the text message, "please confirm flax contract". Mr Archter responded by texting back a "thumbs-up" emoji, but ultimately did not deliver the 87 metric tonnes of flax as agreed. Issues The parties did not dispute the facts, but rather, "disagreed as to whether there was a formal meeting of the minds" and intention to enter into a legally binding agreement. The primary issue that the Court was tasked with deciding was whether Mr Achter's use of the thumbs-up emoji carried the same weight as a signature to signify acceptance of the terms of the alleged contract. Mr Mickleborough put forward the argument that the emoji sent by Mr Achter conveyed acceptance of the terms of the agreement, however Mr Achter disagreed arguing that his use of the emoji was his way of confirming receipt of the text message. By way of affidavit, Mr Achter stated "I deny that he accepted the thumbs-up emoji as a digital signature of the incomplete contract"; and "I did not have time to review the Flax agreement and merely wanted to indicate that I did receive his text message." Consensus Ad Idem In deciding this issue, the Court needed to determine whether there had been a "formal meeting of the minds". At paragraph , Justice Keene considered the reasonable bystander test: " The court is to look at “how each party’s conduct would appear to a reasonable person in the position of the other party” (Aga at para 35). The test for agreement to a contract for legal purposes is whether the parties have indicated to the outside world, in the form of the objective reasonable bystander, their intention to contract and the terms of such contract (Aga at para 36). The question is not what the parties subjectively had in mind, but rather whether their conduct was such that a reasonable person would conclude that they had intended to be bound (Aga at para 37)." Justice Keene considered several factors including: The nature of the business relationship, notably that Mr Achter had a long-standing business relationship with SWT going back to at least 2015 when Mr Mickleborough started with SWT; and The consistency in the manner by which the parties conducted their business by way of verbal conversation either in person or over the phone to come to an agreement on price and volume of grain, which would be followed by Mr Mickleborough drafting a contract and sending it to Mr Achter. Mr Mickleborough stated, "I have done approximately fifteen to twenty contracts with Achter"; and The fact that the parties had both clearly understood responses by Mr Achter such as "looks good", "ok" or "yup" to mean confirmation of the contract and "not a mere acknowledgment of the receipt of the contract" by Mr Achter. Judgment At paragraph , Keene J said: "I am satisfied on the balance of probabilities that Chris okayed or approved the contract just like he had done before except this time he used a thumbs-up emoji. In my opinion, when considering all of the circumstances that meant approval of the flax contract and not simply that he had received the contract and was going to think about it. In my view a reasonable bystander knowing all of the background would come to the objective understanding that the parties had reached consensus ad item – a meeting of the minds – just like they had done on numerous other occasions." The court satisfied that the use of the thumbs-up emoji paralleled the prior abbreviated texts that the parties had used to confirm agreement ("looks good", "yup" and "ok"). This approach had become the established way the parties conducted their business relationship. Significance of the Thumbs-Up Emoji Justice Keene acknowledged the significance of a thumbs-up emoji as something analogous to a signature at paragraph : "This court readily acknowledges that a thumbs-up emoji is a non-traditional means to "sign" a document but nevertheless under these circumstances this was a valid way to convey the two purposes of a "signature" – to identify the signator… and… to convey Achter's acceptance of the flax contract." In support of this, Justice Keene cited the dictionary.com definition of the thumbs-up emoji: "used to express assent, approval or encouragement in digital communications, especially in western cultures", confirming that the thumbs-up emoji is an "action in an electronic form" that can be used to allow express acceptance as contemplated under the Canadian Electronic Information and Documents Act 2000. Justice Keene dismissed the concerns raised by the defence that accepting the thumbs up emoji as a sign of agreement would "open the flood gates" to new interpretations of other emojis, such as the 'fist bump' and 'handshake'. Significantly, the Court held, "I agree this case is novel (at least in Skatchewan), but nevertheless this Court cannot (nor should it) attempt to stem the tide of technology and common usage." Ultimately the Court found in favour of SWT, holding that there was a valid contract between the parties and that the defendant breached by failing to deliver the flax. Keene J made a judgment against ALC for damages in the amount of $82,200.21 payable to SWT plus interest. What does this mean for Australia? This is a Canadian decision meaning that it is not precedent in Australia. However, an Australian court is well within its rights to consider this judgment when dealing with matters that come before it with similar circumstances. This judgment is a reminder that the common law of contract has and will continue to evolve to meet the everchanging realities and challenges of our day-to-day lives. As time has progressed, we have seen the courts transition from sole acceptance of the traditional "wet ink" signature, to electronic signatures. Electronic signatures are legally recognised in Australia and are provided for by the Electronic Transactions Act 1999 and the Electronic Transactions Regulations 2020. Companies are also now able to execute certain documents via electronic means under s 127 of the Corporations Act. We have also seen the rise of electronic platforms such as "DocuSign" used in commercial relationships to facilitate the efficient signing of contracts. Furthermore, this case highlights how courts will interpret the element of "intention" when determining whether a valid contract has been formed, confirming the long-standing principle that it is to be assessed objectively from the perspective of a reasonable and objective bystander who is aware of all the relevant facts. Overall, this is an interesting development for parties engaging in commerce via electronic means and an important reminder to all to be conscious of the fact that contracts have the potential to be agreed to by use of an emoji in today's digital age.
The McCabes Government team are pleased to have assisted Venues NSW in successfully overturning a District Court decision holding it liable in negligence for injuries sustained by a patron who slipped and fell down a set of steps at a sports stadium; Venues NSW v Kane  NSWCA 192 Principles The NSW Court of Appeal has reaffirmed the principles regarding the interpretation of the matters to be considered under sections5B of the Civil Liability Act 2002 (NSW). There is no obligation in negligence for an occupier to ensure that handrails are applied to all sets of steps in its premises. An occupier will not automatically be liable in negligence if its premises are not compliant with the Building Code of Australia (BCA). Background The plaintiff commenced proceedings in the District Court of NSW against Venues NSW (VNSW) alleging she suffered injuries when she fell down a set of steps at McDonald Jones Stadium in Newcastle on 6 July 2019. The plaintiff attended the Stadium with her husband and friend to watch an NRL rugby league match. It was raining heavily on the day. The plaintiff alleged she slipped and fell while descending a stepped aisle which comprised of concrete steps between rows of seating. The plaintiff sued VNSW in negligence alleging the stepped aisle constituted a "stairwell" under the BCA and therefore ought to have had a handrail. The plaintiff also alleged that the chamfered edge of the steps exceeded the allowed tolerance of 5mm. The Decision at Trial In finding in favour of the plaintiff, Norton DCJ found that: the steps constituted a "stairwell" and therefore were in breach of the BCA due to the absence of a handrail and the presence of a chamfered edge exceeding 5mm in length. even if handrails were not required, the use of them would have been good and reasonable practice given the stadium was open during periods of darkness, inclement weather, and used by a persons of varying levels of physical agility. VNSW ought to have arranged a risk assessment of the entire stadium, particularly the areas which provided access along stepped surfaces. installation of a handrail (or building stairs with the required chamfered edge) would not impose a serious burden on VNSW, even if required on other similar steps. Issues on Appeal VNSW appealed the decision of Norton DCJ. The primary challenge was to the trial judge's finding that VNSW was in breach of its duty of care in failing to install a handrail. In addition, VNSW challenged the findings that the steps met the definition of a 'stairwell' under the BCA as well as the trial judge's assessment of damages. Decision on Appeal The Court of Appeal found that primary judge's finding of breach of duty on the part of VNSW could not stand for multiple reasons, including that it proceeded on an erroneous construction of s5B of the Civil Liability Act 2002 and the obvious nature of the danger presented by the steps. As to the determination of breach of duty, the Court stressed that the trial judge was wrong to proceed on the basis that the Court simply has regard to each of the seven matters raised in ss 5B and 5C of the CLA and then express a conclusion as to breach. Instead, the Court emphasised that s 5B(1)(c) is a gateway, such that a plaintiff who fails to satisfy that provision cannot succeed, with the matters raised in s 5B(2) being mandatory considerations to be borne in mind when determining s 5B(1)(c). Ultimately, regarding the primary question of breach of duty, the Court found that: The stadium contained hazards which were utterly familiar and obvious to any spectator, namely, steps which needed to be navigated to get to and to leave from the tiered seating. While the trial judge considered the mandatory requirements required by s5B(2) of the CLA, those matters are not exhaustive and the trial judge failed to pay proper to attention to the fact that: the stadium had been certified as BCA compliant eight years before the incident; there was no evidence of previous falls resulting in injury despite the stairs being used by millions of spectators over the previous eight years; and the horizontal surfaces of the steps were highly slip resistant when wet. In light of the above, the Court of Appeal did not accept a reasonable person in the position of VNSW would not have installed a handrail along the stepped aisle. The burden of taking the complained of precautions includes to address similar risks of harm throughout the stadium, i.e. installing handrails on the other stepped aisles. This was a mandatory consideration under s5C(a) which was not properly taken into account. As to the question of BCA compliance, the Court of Appeal did not consider it necessary to make a firm conclusion of this issue given it did not find a breach of duty. The Court did however indicated it did not consider the stepped aisle would constitute a "stairway" under the BCA. The Court of Appeal also found that there was nothing in the trial judge's reasons explicitly connecting the risk assessment she considered VNSW ought to have carried out, with the installation of handrails on any of the aisles in the stadium and therefore could not lead to any findings regarding breach or causation. As to quantum, the Court of Appeal accepted that the trial judge erred in awarding the plaintiff a "buffer" of $10,000 for past economic loss in circumstances where there was no evidence of any loss of income. The Court of Appeal set aside the orders of the District Court and entered judgment for VNSW with costs. Why this case is important? The case confirms there is no obligation in negligence for owners and operators of public or private venues in NSW to have a handrail on every set of steps. It is also a welcome affirmation of the principles surrounding the assessment of breach of duty under s 5B and s 5C of the CLA, particularly in assessing whether precautions are required to be taken in response to hazards which are familiar and obvious to a reasonable person.
The recent decision in New Aim Pty Ltd v Leung  FCAFC 67 (New Aim) has provided some useful guidance in relation to briefing experts in litigation.