HUSBAND FAILED TO EXECUTE HIS NEW WILL DUE TO STROKE

PAOLI v PAOLI [2021] SASC 11 (10 February 2021)

This is an application bought by the applicant-wife for the making of a statutory will for Luciana Paoli who lost his testamentary capacity before executing his new will.

Facts:

Mr Paoli made a will in 2007. Subsequently, his financial circumstances changed. In late 2019, he instructed solicitors to make a new will.  He attended on Mr Jason Coluccio for that purpose on a number of occasions. He gave instructions to Mr Coluccio for the making of a new will. The last attendance on Mr Coluccio by Mr Paoli was on 21 November 2019.  Mr Coluccio prepared a draft will based on the final instructions given by Mr Paoli on that date. However, before that draft will was executed by Mr Paoli he suffered a stroke on 1 December 2019.

Based on evidence and medical report dated 16 December 2020, Mr. Paoli has lost testamentary capacity in the sense described in the authorities and is unlikely to recover it. Mr Paoli suffers from vascular dementia following a right-sided ischaemic stroke. He does not have mental capacity for decisions with regard to financial, lifestyle and medical decisions. His mental incapacity is likely to be permanent.

The applicant sought the making of a statutory will in terms that reflect the final instructions given by Mr Paoli to Mr Coluccio on 21 November 2019.

The applicant requires permission to bring this application. Further, the provisions of  S.7 of the Act require that any person who may inherit on intestacy and any person who might claim the benefit of the Inheritance (Family Provision) Act 1972 would be entitled to be heard on the application.

Issue: Should the court grant the relief sought by the applicant which will reflect the final instruction given by Mr. Paoli on November 21, 2019 despite his current lack of testamentary capacity?

Law:

• Section 7 of the Wills Act 1936

Analysis:

The terms of this will accurately reflect the likely intentions of Mr Paoli if he now had testamentary capacity.  That finding followed from the evidence of the instructions he gave to Mr Coluccio in late 2019 for the making of a new will.  There was no reason to consider Mr Paoli would have changed his testamentary intentions in the ensuing 12 months since he gave those instructions.

It was unnecessary to consider the position of any person who would take in the event of intestacy because the 2007 will means that Mr Paoli will not die intestate. The court is not in a position to make a finding that the proposed will makes adequate provision for any person who would be entitled to claim the benefit of the Inheritance (Family Provision) Act 1972  (SA) (Family Provision Act) when Mr Paoli dies.  As there was no application of this kind before the Court it was not appropriate for the Court to make or not make such a finding.

Conclusion: Permission to make the application is granted to the Applicant.

#Succession