March 2016
The actual intention to draw up a last will and testament as a ground for contesting a private will
Ioannis Psarakis, Lecturer, LL.M (III), PhD Cand.
Legal insight
Stellina Mandalou, Trainee lawyer
George Kefalas, LL.M. (mult.), Μ.Sc.
Summary: It is not uncommon for relatives to be taken by surprise after the contents of the deceased's will have been disclosed to the deceased's family. As a rule, this happens when the will contains provisions which create unexpected injustices or are generally inconsistent with the character and views of the deceased. For example, the testator may leave his entire estate to a foundation or to third parties with whom he had no special ties, thus unjustifiably excluding his family. This is often due to the fact that the deceased, at the time the will was drawn up, could not understand the significance of his act, being an easy 'victim' of malicious third parties who wanted to influence his will.
1.Introduction
Very often, when the contents of the will are revealed, the relatives of the deceased are surprised to discover that the deceased, with whom they had excellent relations until his death, has omitted them from his will or has limited them to a very small part of his estate (usually, for close relatives, to the "legal share", i.e. the minimum legal share). This can be done deliberately by the testator, who is in principle free to dispose of his property as he wishes - with a few exceptions relating to children, parents and the deceased's spouse - so there is no question of the will being invalid. However, there are cases where the testator, usually because of an illness or a health problem in general, cannot freely form his will and is not conscious of his actions and their significance. In these cases, the will drawn up is invalid, which can be recognised by a court decision, following an action.
2. Lack of conscience and mental or intellectual disorder of the testator
The third paragraph of Article 1719 of the Civil Code provides for two cases of incapacity to make a will, which, according to the case law of the Greek courts, are analysed as follows:
i. Lack of consciousness of the acts, which exists when the person, due to a morbid or non-morbid cause (such as, for example, intoxication, hypnosis, cerebral edema, agony, etc.), lacks the ability to diagnose the substance and content of the will he is making, as well as the ability to grasp the meaning of its individual provisions. A general and complete lack of conscience is not generally required, but a largely confused state of mind is sufficient.
ii. A mental or intellectual disorder which decisively limits the operation of the testator's will, which exists when the testator is in a mental disorder which does not allow him to freely determine his will by rational calculations, since the latter is dominated by representations, feelings, impulses and influences of third parties and is unable to resist submissions from third parties. The diseases which may lead to this disorder are, for example, manic-depressive psychosis, schizophrenia, paranoid delusions, but also senile dementia, when it causes permanent disturbance of the functioning of the mind to the extent that it precludes rational judgement, and oligophrenia.
It is important to clarify that the testator is likely to be able to attempt simple actions and arrange his daily affairs independently and in a proper manner, but may lack the capacity required by law to make a will. On the other hand, the mere mental decline that often accompanies aging does not, in and of itself, justify such incapacity.
What is decisive in each case is whether a disease or a condition has affected - and significantly affected - the testator's consciousness, perceptive capacity and will at the time the will was drawn up.
3. Critical time for the existence of capacity to make a will
The relevant time at which the testator must have capacity to make a will is, in the case of a personal will (a will written in the testator's own hand, dated and signed by the testator himself), the time of its making. In the case of a secret will (a private will handed over to a notary for safekeeping), the decisive time is the time from the delivery of the document of the secret will to the notary to the signing of the notarial act. Finally, where the will is a public will (a will drawn up before a notary), capacity must exist at the time the testator's last will is declared before the notary, i.e. at the time the relevant notarial deed is drawn up.
4. Cases from the case law of the Greek courts
Cases in which it has been held by case law that the capacity required by law to draw up a will did not exist due to the testator's lack of conscience or mental and intellectual disorder are indicative of the following:
- The testatrix was deemed incapable of drafting a will due to loss of consciousness and inability to communicate, as a result of a severe stroke suffered on the day the will was drafted and before the drafting of the will (Supreme Court decision 913/2019).
- A personal will was declared invalid, as the testator who drafted it suffered, from a young age and at the time of its drafting, from a non-curable and incurable mental illness and, in particular, psychotic paranoiac-type psychotic disorder, with the result that he was not conscious of the deeds (Supreme Court decision 489/2018).
- The will was declared invalid due to the testator's suffering at the time of drafting from organic psychosyndrome - dementia (senile dementia), while this judgment was also reinforced by the fact that the deceased at the time of drafting the contested will was unable to carry out transactions and never walked alone, but always accompanied by his sister, who was essentially under her supervision (Supreme Court decision 237/2017).
- Gerontological dementia in combination with a generally aggravated state of health and the concomitant contribution of several diseases in the person of the testator may also lead to the invalidity of the will (e.g. verdict of the Council of Appeals of Western Central Greece 75/2014, decision of the Supreme Court 1413/2014).
- Also, according to the decision 620/2009 of the Athens Court of Appeal, the existence at the time of drafting the will in question of an organic psychosyndrome in the testator's person, a disease that manifests itself in elderly persons suffering from many diseases and taking numerous medications, with the consequence that the metabolic balance of the brain is disturbed, rendered him incapable of drafting the will. In support of that finding of the court's finding of incapacity were the facts that the testator was taking the relevant medicines for heart and kidney failure and prostatic hypertrophy, from which he suffered, as well as a particular anti-anxiety drug.
- Finally, the 1935/2007 decision of the Athens Court of Appeal, which ruled that the testatrix was incapable of drawing up a will due to her lack of consciousness of the facts, was a rare one, without this lack of consciousness being attributed to a specific illness, but to the strong emotional stress caused by many factors that shaped her psychological state, such as the imposition on her by the religious circles with which she was in close contact of the belief that the disposal of her assets to them would help her to 'secure metaphysical benefits', the excessive religious zeal with which she was overcome, but also her extremely limited knowledge of grammar and her lack of social experience.
5. Evidence leading the judge to decide on the invalidity or otherwise of the will
The courts, in order to reach their decision on the invalidity or otherwise of the will, rely on a number of pieces of evidence, in particular:
Particular importance is attached to opinions from a doctor specialising in the condition in question, who attended the testator during the period when the will was drawn up and, in particular, where it is expressly stated that the condition in question affects the will and the patient's conscience. For example, a neurologist-psychiatrist is the specialty that can diagnose hepatic encephalopathy and the stage at which it is at (see Supreme Court decision 2169/2014). The diagnosis is made on the basis of: 1. psychometric tests, 2. tests to connect numbers with lines on paper, 3. measuring the speed of reaction to auditory or visual stimuli and 4. tests with EEG (Electroencephalogram).
Usually, the deceased's health booklet is produced before the Court, showing the medicines prescribed to him/her during the relevant period of time (see e.g. "Furthermore, if he had suffered from mental illness or lacked the use of reason, it would have been established in the hospitals where he had been hospitalized (University Hospital of Ioannina, Medical Center of Athens), in addition he would have received the appropriate medication for the treatment of his problem"; similarly, decision 2169/2014 of the Supreme Court: "It does not appear that he was taking a psychotropic drug such as aloperidin coke to address issues of mental and intellectual disorder").
For each condition, specific tests are matched to the condition in question. For example, for the condition of hepatic encephalopathy it is important to have blood ammonia measurements. If the relevant tests did not take place, it becomes more difficult to prove (see decision 727/2016 of the Supreme Court: "Since no neurological or psychiatric examinations were performed on the deceased during her hospitalization to medically determine her mental state...").
It is critical that they have communicated with the testator during the critical period of time and in any event after the onset of the disease that resulted in the decline in his or her cognition.
Close relatives who were aware of the disease from which the testator suffers would have been reasonable, if it did indeed affect his free will, to have applied for legal aid.
For example, the fact that during the critical period the deceased was still engaged in business activities, participating in events or attending general meetings indicates that he or she was aware of what was happening.
The fact that a testator who, through several wills, declared his son as heir over time and then, with the last will, limited his son to a small part of the inheritance, was held by the court to indicate that the testator was influenced and unable to understand what was happening, in combination with other circumstances (decision 620/2009 of the Athens Court of Appeal).
6. Consequences of invalidity of the will
A will drawn up by a person who is incapable of drawing it up is automatically invalid and, therefore, even without the intervention of a court decision, it is considered as never having been drawn up. However, any person with a legal interest - such as their heirs or creditors intestate - may bring an action for a judicial declaration that the will is invalid.
The legal succession (Article 1710 CC) is thus passed on to the heirs intestate of the deceased, to whom the succession is retroactively passed from the time of his death, i.e. exactly as if the will had not been drawn up.
It should be noted that the right to bring an action for a declaration that a will drawn up by a person incapable of doing so is invalid is not subject to any limitation of time or limitation period.
7. Instead of an epilogue
Often the deceased at the time of making the will may not be aware of his act and its consequences. Relatives aggrieved by the provisions of such a will may, if they prove that indeed the testator, for any of the reasons mentioned, was indeed unable to understand the significance of his act and to form his will freely, may apply to the Court, seeking recognition of the invalidity of the will, whereupon they may be called to the inheritance according to intestate succession
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