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Civil Law

Persons who have mental health issues still have the right to draw a will

By December 21, 2018November 3rd, 2023No Comments

The fact that a testator has mental health issues at the time he draws up a will, does not mean that that will is null and void. This was held on 10 December 2018 by Mr Justice Lawrence Mintoff in Dr Carmelo Galea on behalf of the absent Mario Schembri -v- Rosina Schembri; Carmel Schembri; Joseph Schembri; Sinitio sive Sintheo Schembri; and Teddy Schembri.

Mario Schembri held that he was one of 10 siblings and his parents both had several wills registered from 1971 and 1999. The plaintiff challenged the last wills registered: that of April 1999, of April 1996 and of January 1995. The plaintiff explained that his mother Anna Schembri at the time was suffering from Alzheimer’s disease and was not fully in her right mind to be able to do a will. He therefore, asked the court to declare these null and void.

His other siblings had filed statements of defence, where they challenged this claim, because they claimed that their mother was fully capable of changing her wills.

Mr Justice Mintoff analysed the evidence produced in this case. Mario Schembri presented an affidavit, explaining that he had lived in Canada since 1973, but kept regular contact with his parents. In July 1994, he visited Malta and his parents, but found that his mother Anna was confused. She missed shops for the church and his father and sister, who lived with her were afraid of leaving her on her own. He suspected that his mother was already suffering from Alzheimer’s. He visited Malta again in 1997 and his mother’s health had deteriorated. She once confused him with his father. When back in Canada, he used to ring her up and his mother had difficulty in identifying with whom she was speaking. The plaintiff’s wife and son corroborated this version of events.

The court heard Dr Brian Farrugia, who was not the parents’ usual doctor, but had visited them at St Vincent de Paule three times. He could not access their medical records, because Anna had been dead for more than 10 years and the files were destroyed, while Antonio Schembri‘s files were damaged, since rain water had leaked into the room where they were being kept. He knew that Anna Schembri suffered from dementia before 2008.

The couple’s doctor was Dr Raymond Sacco who was their regular doctor between 1990 and 2002. He stated that Anna Schembri’s mental health was good and she could have suffered from dementia at the end of 2002.

The defendants who testified stated that at the time when their mother had drawn up wills, she was very capable and did not show signs of mental health.

Mr Justice Mintoff pointed out that although the plaintiff was convinced that his mother suffered from Alzheimer’s disease, the objective evidence of the medical records had been destroyed. Furthermore, the two doctors that were produced gave opposite views on Anna Schembri’s mental health. It is not out of the ordinary that the court is faced with opposing positions and so it quoted from George Bugeja -v- Joseph Meilak, decided on 30th October 2003, which stated that when the court is faced with opposing versions of events, it is not whether the explanations that are given are believable, but whether on the balance of probability the versions are credible.

The Court also took into consideration what the notary who drafted the will had testified; that Anna’s mental health was good enough for her to make new wills. Rosina spent most of the day taking care of her parents. The fact that Anna Schembri’s health deteriorated, was something normal, considering her age. It is understandable that since Rosina was taking care of her parents, she was given preference in the will. In fact, both doctors stated that Anna Schembri was taken well care of.

The Court quoted from Carmen Micallef v Madalena Galea et decided on 10th April 2013, where the capacity is the rule, while the incapacity to do a will is the exception. The fact that the testator has mental health issues is not sufficient to declare the will null and void, since there may be times where the testator is livid. The Courts consider a will as invalid if the testator, when drawing up the will, is not in his right mind. In Bonavia v Bonavia decided on 20th October 1971 the incapacity must take place because of mental infirmity, and the incapacity has to be proved.

In this particular case, the will does not show that the testator, Anna Schembri, had mental health issues. Apart from this the will was a unica charta will since it was joint with her husband Antonio. Anna did not change the wills after Antonio’s death.

The Court moved to uphold the pleas and turned down the claim.

Av Malcolm Mifsud


Mifsud & Mifsud Advocates

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