A public will which is drawn up before a notary is difficult to annul because it provides greater security as regards the safeguarding of the formal requirements, its authenticity, etc.
However, there are also cases where even these public wills, which are considered more secure and more powerful, are invalidated as to their content due to the mental state of the testator and his/her inability to discern the meaning of the content of the will, his/her will, the consequences of his/her actions, etc.
Incapacity to draft a will can be demonstrated for someone who is long-term ill and on medication that is strong and limits and significantly affects their cognition. In other words, it is not necessary that there is a psychiatric condition but also a physical condition that because of the medication affects mental capacity and perception.
Also important in this decision is the notary's exemption from any liability as to the perception of the testator's lack of capacity, which was apparent but the court held that the notary does not ascertain or judge whether or not someone is mentally and intellectually competent to act.
Such a case will be examined below and we will look in detail at the evidence that led the court to find that the testator was incapable of making a will due to mental and psychological disorder and lack of will.
The total invalidity of a will results, among other things, from the testator's lack of capacity to make a will due to a mental or intellectual disorder which decisively limits the operation of his will. In this case the will is invalid when :
1) the testator is mentally or psychologically impaired at the time the will is drawn up,
2) this disorder has caused an interference with the free determination of his/her will,
3) there has been a decisive influence of his will, i.e. a significant reduction in the testator's ability to objectively control reality; and
4) this incapacity exists throughout the entire period of the drawing up of the will, which in the case of a public will begins from the testator's oral declaration before the notary and the witnesses present of his last will and testament until the signing of the instrument drawn up.
A mental or intellectual disorder which decisively limits the operation of the testator's will is, in particular, any disorder which significantly reduces the ability to objectively control reality, that is to say, when, as a result of this disorder, the free determination of the testator's will by reasonable calculations is precluded at the time the will is drawn up, since the latter is dominated by representations, feelings, impulses or influences of third parties.
Determining when in a particular case the free determination of the testator's will by reasonable calculations is excluded is a very delicate and difficult task and must be judged on a case-by-case basis.
Thus, it has been found that a generalised carcinomatosis with multiple metastases to other vital organs of the body is accompanied by psychological and pathological disorders of the patient, which in combination with the medication taken may result in disturbances in the level of consciousness, create a state of mental confusion, reduced ability to focus and maintain attention, disturbances in spatio-temporal orientation and impairment of cognitive functions with a fluctuating course and alternations in excitation and suppression. In this case the patient is not cooperating and is usually given psychotropic drugs as a consequence of the cumulative adverse effect of the disease on the patient. The poor mental and psychological state of the above patient is also reflected in the writing and signing of his will, when it is drawn up in the abovementioned adverse health conditions, since it is usually done in a laborious and pathological manner due to his adverse clinical condition and his inability to hold the stylus.
In addition, it must be taken into account in each case whether and to what extent the testator's constant hospitalisation and the extensive use of a particular medication by him alter and disorganise his personality, so as to preclude the free determination of his will by reasonable calculations, and it is an important factor in the case of a cancer patient if he has made his will at a time when he has discontinued the chemotherapy or radiotherapy to which he was subjected and if his health was deteriorating at that time.
The law requires only a mental or intellectual disorder decisively limiting the function of the testator's will and not the existence of a specific mental or psychological illness or disease, obviously because of the fact that deprivation of the use of reason due to mental illness is a legal term not used in medicine, i.e., a term which can hardly be defined precisely, since mental illness is not only the disease of the cognition of the spirit, but in general any mental disorder. Consequently, the disorder need not necessarily be due only to a specific condition of the sufferer, but it is sufficient to be diagnosed from the overall mental and spiritual condition of the sufferer. Furthermore, within the meaning of the above provision, a general and complete lack of consciousness of the external world is not required, but it is sufficient that the declarant's mind is clouded by some morbid or non-morbid cause which causes a great deal of confusion of consciousness and, subsequently, an inability to discern the substance and content of his declaration. Incapacity shall be assessed at the time the will is drawn up, whereas its subsequent selection or its existence at an earlier stage shall have no legal effect. If, however, it is a non-curable condition or a serious mental or intellectual disorder of the testator, it is not necessary to prove it at the time of making the will, since it is presumed because of its duration.
Furthermore, according to the Code of Notaries, the notary must:
(a) refrain from drawing up an act contrary to law or morality; and
(b) to perform his or her duties conscientiously and impartially, explaining to the parties the obligations they assume and the rights they have under the instruments drawn up and ascertaining that they are aware of the effects of those instruments.
From these provisions, it follows, on the one hand, that the notary's described duties do not include ascertaining the mental or psychological state of those who make a declaration of will before him, and on the other hand, that the information that every notarial document must contain does not include an assessment of the mental or psychological state of the person making the will, i.e. whether or not there is a case of legal incapacity. Consequently, the notary who draws up a public will is not competent to ascertain whether the person making a declaration of will was (or was not) conscious of his or her actions or whether he or she was (or was not) in a mental or intellectual disorder that did or did not decisively limit the operation of his or her will. If, however, he affirms the above, such affirmation constitutes his subjective judgment and perception, which does not prevent the testator's incapacity from being proved, without requiring the will to be contested for forgery.
On the basis of the above considerations, the court accepted the following: The testator and subsequently deceased, the plaintiffs' father, died as a result of lung metastases from colon cancer and cardiopulmonary arrest. At the time of his death, his next of kin were the plaintiffs, his only children, and his wife had predeceased him.
In 2016 the Notary came to the deceased's residence and there it is alleged that the deceased declared his last will and testament orally before her and three witnesses, with the consequence that a public will of the above deceased was drawn up by the above Notary, the content of which is as follows: «I wish, when I leave, to leave to N., daughter of my partner of 23 years, whom I consider my daughter, the house in Lutsa with the land surrounding it, as I believe that she should have it, since her mother took care of me all these years and helped me financially in building the house. To my daughter M. and my son B., whom I spoke to after many years, I leave my share in Rafina and my part of the land in Lutsa jointly, as I consider that I have provided for them financially in the early years of their marriages. Finally, I want to give my sister B. my piece of land in Lutsa because she has been taking care of me for the last few months and I want to thank her for that. I hope my children will respect my wishes».
In the above manner, it is alleged that the deceased settled the defendants as the sole heirs of the real property he owned in Artemis. After the death of the testator, the above notary public presented the above will for publication, with the result that it was published and registered in the will books of the above court.
The first defendant, however, had knowledge of the contents of that will before its publication, since in her extrajudicial invitation, which she communicated to the children of the deceased testator, she invited them to hand over to her the keys to the house described in the above will, since she was, according to her claims, the heir to that property. Further, it was proved that the decedent underwent in October, 2014, a cirrhosis and metastasectomy on the liver due to a metastatic Ca colon from the beginning. For this reason, he was hospitalized at the General Anti-Cancer Oncology Hospital of Athens «Agios SAVAS», and since then his health condition has been gradually deteriorating, which was contributed to by his undergoing the chemotherapies necessary for the treatment of the aforementioned disease, as well as taking extensive medication. In particular, the deceased initially received six (6) cycles of Helox from the doctors treating him at the above hospital and then, because of the deterioration of the aforementioned disease, he was given a combination of pharmaceutical preparations.
Subsequently, his treatment was modified, on the advice of his doctors, by administering the combination of other drugs, but was discontinued due to a reaction of the inherited patient's body to oxaliplatin and the development of leukoencephalopathy, probably related to a pharmaceutical preparation. Subsequently, treatment continued as normal, but with the recurrence of a series of complications, as stated in a medical certificate from the A Pathology - Oncology Department of the above hospital. Systemic chemotherapy of the deceased was started at the above hospital in 2015 with the administration of drugs. At the time of discharge of the deceased from the above hospital on , he was advised to take various drugs. Subsequently, the deceased was hospitalized in the above hospital several times as part of the treatment of the above disease.
The clinical health status of the deceased was stable, and stable with the recommendation to take enhanced medication after discharge from the above hospital, depending on the results of the general blood test. This enhanced medication remained the same until 2016, when he was re-admitted to the aforementioned hospital and was further enhanced, given the diagnosis of disturbances in his communication level and neurological picture. In particular, in January 2016, the health condition of the deceased started to deteriorate rapidly and the continuous and increasing medication he was receiving had a direct impact on his mental and intellectual state and his general clinical picture.
The above rapid deterioration of the deceased's health was evident during his subsequent hospitalization in «SOTIRIA». More specifically, the decedent entered the above hospital febrile (up to 37.7℃) with disturbance in the level of consciousness and communication since 24 hours, having received the last chemotherapy ten (10) days ago. In the discharge information note of the doctors of the above hospital, it is mentioned in the discharge information note of the doctors of the above hospital that when the decedent's nervous system was examined when he was admitted to the above hospital, he was a confusional patient, not oriented to space/time, and his personal medical history not only mentioned his above condition (colorectal malignancy since 2004), but also his anxiety disorder. Until his admission to the above-mentioned «SOTIRIA» hospital, the deceased was taking home medication in addition to the aforementioned pharmaceutical preparations recommended for him.
The deceased was discharged from the above hospital without his communication level and neurological picture being fully restored. He was subsequently readmitted to hospital in «St Savvas», where an imaging examination of the medical tests carried out revealed deterioration of the lungs, liver and peritoneal infusions, whereas, as stated in the medical discharge note of the above hospital, the deceased had a neurological history and was not cooperating, with the result that it was decided to stop his chemotherapy and to give him supportive treatment.
Therefore, it is proven that the neurological picture of the deceased at the time of his aforementioned discharge from the Athens hospital «SOTIRIA» not only had not been fully restored, as the appointed technical consultant of the defendants unfoundedly claims, but on the contrary had not shown any substantial improvement. In fact, to the already then enhanced medication of the deceased was added another treatment and in particular the use of an antipsychotic drug containing the active substance haloperidol, which belongs to the category of strong neuroleptic drugs and in particular to the group of butyrophenones with a broad spectrum of action, and is indicated, inter alia, in cases of psychotic states, psychomotor agitation, disturbed (violent or aggressive) behaviour and persistent hiccups.
Nozinan is a neuroleptic drug, containing the active substance levomepromazine, a phenothiazine derivative with antipsychotic sedative and analgesic properties, belongs to the psychotropic and antipsychotic drugs and is taken to treat psychotic conditions and neuroses and to control psychomotor agitation. It should be noted that the deceased continued to take, until his death, the above-mentioned pharmaceutical preparations Seropram and Neurotin, among others, the former of which belongs to the category of antidepressants and the latter is used for the treatment of epilepsy and peripheral neuropathic pain, that is to say, long-lasting pain caused by nerve damage. In particular, the Seropram formulation was administered to the hereditary patient both to treat depression and to prevent the occurrence of new depressive episodes, since the active substance citalopram administered to the patient via the above-mentioned medicinal product helps to correct chemical disturbances in the brain of the patient who is experiencing symptoms of depression.
Based on the above development of the patient's health, the continuation of taking the drugs Seropram and Neurotin after 8-1-2016 by the deceased on the recommendation of the doctors of the General Hospital. «OR SOTIRIA», in combination with all of the aforementioned medication that he continued to receive after his discharge from the above hospital, demonstrates that his neurological picture had not substantially improved, much less his mental health had not been restored, since, in that case, the doctors treating the deceased would certainly have either reduced the dosage of those preparations, or replaced them with other medicinal preparations with a reduced effect on the deceased's mental health, or discontinued their administration.
On the contrary, the mental and intellectual health of the deceased was in such a state that a few days later, as mentioned above, the psychotropic and antipsychotic preparation Nozinan was added to the deceased's medication, among others, which would not have been administered to the deceased if he had not in fact suffered from a significant mental disorder. Also, a particularly crucial element in the case in question is the fact that the deceased was discharged on 29-2-2016 from the Athens hospital «O Aghios Savas»:
(a) by permanently discontinuing the chemotherapy he was receiving; and
b) with instructions to take the above medication, which, as described in the aforementioned medical certificate of 30-5-2016, had the character of a supportive - palliative treatment, i.e. a treatment that did not aim to improve the mental and clinical picture of the deceased, as it was irreversible, but to improve the conditions of his remaining life, given that he was in the last stage of his condition and his general condition, including his mental and psychological condition, was aggravated.
Specifically, as stated in the expert report of a neurologist - psychiatrist during the period from February 2016 until the critical time of the contested public will, the physical condition of the deceased - showed a constant deterioration, while the state of his mental health showed a deterioration, especially the depressive disorder, from which he suffered, as well as his mental function. Medication for the cancer had been discontinued, and the deceased had been receiving only medication for the neuropsychiatric disorders from which he suffered during that period.
During the period from the end of February 2016 until 7-3-2016 the deceased was unable to identify his claimants - children, he was refusing to feed and was completely unable to write or sign documents. Specifically, he communicated with his relatives mainly through simple one-word affirmative or negative responses, having limited verbal sign language ability and lacking the capacity for self-care and diligence, of his personal affairs.
Indicatively, shortly before leaving the above hospital on 26-2-2016, the deceased, having hallucinations, addressed his brother-in-law and said to him: «bring the ladder so that we can take it to the roof». At the same time, the deceased was not able on 15-3-2016 to sign even a simple affidavit. The decedent, in early March 2016, was now experiencing confusion, hallucinations, loss of memory and ability to concentrate, and inability to form specific judgments and perceptions. In particular, when the aforementioned notary appeared on 7-3-2016 at his residence in order to have the aforementioned contested will drawn up before her, she addressed the deceased before the drawing up of the will, in order to provide her with his personal details, including his residential address and the number of his identity card, the latter replied that he resided in a different street from the one he actually resided in, and that he was the holder of another ID card.
Furthermore, while the deceased was bedridden at the above time and his health condition was, according to the above, particularly aggravated, it is alleged, according to the contested will, that he made use of a topographical diagram in order to identify his properties in Artemida, Attica. The boundaries of the above properties were allegedly drawn in December 2015 by the deceased, while there is a signed confirmation on the topographical diagram by the same notary that this topographical diagram was attached to her contract, without, however, proving what the subject of this contract was.
However, the mental and intellectual state of the deceased was not such that he could make use of the above topographical map, much less understand and distinguish on it his properties. It should also be noted that the signature on the aforementioned public will on the part of the deceased does not resemble at all the usual signature of the deceased, which is clearly visible on the topographical plan, and which is elaborate in terms of specific morphological features. The signatures that the decedent placed on the contested will, on the second and fourth pages thereof, are formidable, irregular in shape and course of engraving, and indicate a significant impairment of his higher cognitive functions. The fact, moreover, that even the above two signatures made do not resemble each other, demonstrates the testator's inability to sign, since it is evident that he made a particularly great effort to direct the pen on the paper.
The above facts show that the deceased, at the time the will was drawn up, did not have the capacity to express orally a provision of his last will and especially with the above specific content, with a structured and complete speech, even making use of a topographical diagram, as he lacked the linguistic and expressive capacity, judgment and perception required for this purpose, being in a mental and intellectual disorder such that he could not remember either the exact address of his residence or the number of his identity card. From the above facts it is proved that the level of the deceased's mental functioning on 7-3-2016 was significantly impaired in terms of spatial and temporal orientation, attention, recognition of familiar persons, memory and judgment functioning. This condition of his psycho-mental function constitutes a mental and intellectual disorder which rendered him, incapable of accurate awareness of the content and substance of the above-mentioned will, because it limited to a decisive degree his will function.
ANASTASIA CHR. APPLE
I'M GOING TO BE A LAWYER.
Ave. 403 Mesogeion Avenue, Agia Paraskevi, Agia Paraskevi
Tel. 6945-028153, 213-0338950
e-mail: natmil@otenet.gr
www.legalaction.gr, fb: Anastasia Miliou
Author of the article:
Attorney at Law & Attorney-at-Law & Attorney-at-Law
Ave. 403 Mesogeion Street, Agia Paraskevi, Agia Paraskevi, Attica
Tel. 6945-028153, 213-0338950
e-mail: natmil@otenet.gr, info@legalaction.gr
www.legalaction.gr
