Death bed will may still be valid at law

Magistrate Dr Josette Demicoli on 6 December 2013 decided that a will which was drawn up on the eve of the testator’s death, changing the heirs was still valid at law.

This was decided  in her decision in the case Dr Rachel Loporto Montebello, as a special mandatory of Mary Rita, known as Maria Camilleri vs Dorothy Refalo and Salvina Farrugia.

In a lawsuit instituted in the Gozo Magistrate's Court Maria Camilleri claimed that her aunt Cristina Vella had died on 8 October 2009. In a will of 4 July 2008 Ms Vella had nominated Maria Camilleri and other members of her family as one of the heirs. However, after Cristina Vella's death, she learnt that on 7 October 2009, her aunt had made another will, drafted by Notary Dr Paul George Pisani, where she was unconscious. The will removed all the family members as heirs and left only the defendants, Dorothy Refalo and Salvina Farrugia. Ms Camilleri asked the court to annul this last will, since she did not possess the mental capacity of consenting to a will and/or was tricked into making this last will.

The defendants pleaded that this was not the case since, at the time when she was making this will she was in her full mental capacity.

The Court examined the facts of the case and saw that ms Vella died on 8 October 2009, at the age of 80 years old  from complication of diabetes. Vella lived with the defendant Salvina Farrugia for around 50 years. On 7 October 2009, changed her will leaving all her immovable and movable property to the two defendants. There was a medical certificate annexed to the new will. The Notary declared that Vella did not sign the will. Hours after the will, Vella was taken to hospital and died the following morning. 

Magistrate Demicoli examined the relevant legislation, as article 655(1) of the Civil Code which stipulates that a notary much receive and publish a will, which has to be made before two witnesses. Article 597 of the same Code states that the will has to be voluntary and the testator must be legally capable and persons who are interdicted or not conscious cannot make a will. 

The court also examined the prevailing legal principles that apply to this case, the first being that there is a legal presumption that the testator is capable of making a will, because being incapable is an exception not the rule. Furthermore, the fact that a person is legally capable of making a will does not mean that that person is perfectly and rigorously of sound mind. It would be sufficient that the testator know what is taking place. Another principle is that it has to be proved that the testator is incapable for the will to be declared null. The plaintiff would have to give strong evidence on this and not show a mere possibility. The evidence must be in the form of précis facts at the time when the will is made. Any doubt has to be in favour of the validity of the will.

With regard to the issue of whether Vella was pressured into making the will, it has to be proved that the testator would not have made the will, if the pressure would have not been made. It is not sufficient that the testator simply gave into the wishes of another person or else pleased that person by making another will. A person can dispose of his or her property at he or she deems fit. 

Magistrate Demicoli held that there were two opposing versions of events, which is not uncommon. The Court commented that the doctor's and notary's evidence were critical. Both confirmed that at the time when Ms Vella made her will she was conscious and she could communicate. 

Dr Josette Rapa testified that Cristina Vella was referred to hospital on 7 October 2009 by Dr Peter Muscat, due to her deterioration of her general condition and it was evident that she was dying. 

Notary Pisano told the court that Dorothy Refalo asked him to go to Ms Vella in Sannat, Gozo. She was in bed and spoke in a low voice. To him, she know what was going on and gave him specific instructions that she wanted the defendants to have everything. He asked her if she wanted to leave anything to someone else and she replied in the negative.  Dr Peter Muscat testified that he visited her daily and on the 7 October he went to her for the first time as a normal routine. He could communicate with her and told him that she was waiting for the notary. He confirmed his certificate. 

After analysing other witnesses, the Court concluded that it was convinced that although Vella was physically tired and she could not speak for long, during the time she was making her will she understood what was happening and as a result the plaintiff claims were turned down.

Malcolm Mifsud is a partner at Mifsud & Mifsud Advocates

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