A public will drawn up in front of a notary public is difficult to annul because it entails a greater security in terms of safeguarding the formal requirements, its authenticity, etc.
But there are also cases that even these public wills which are considered safer and more powerful to be annulled in terms of their content due to the mental state of the testator and his inability to discern the meaning of the content of the will, his will, the consequences of his actions, etc.
Incapacity to make a will can be demonstrated for someone who is chronically ill and on powerful medication that significantly limits and affects their perception. In other words, it is not mandatory to have a psychiatric condition but also a physical one which, due to the medication, affects the mental capacity and perception.
Also an important element in this decision is the exemption of the notary from any responsibility regarding the perception of the testator's lack of capacity, which was obvious but the court ruled that the notary does not establish, nor judge whether or not someone is mentally and spiritually capable of legal action.
We will examine such a case below and see in detail the elements that led the court to its judgment of the testator's incapacity to make a will due to mental and mental disorder and lack of will.
Total invalidity of a will is brought about, among other things, by the testator's lack of capacity to make a will due to a mental or intellectual disorder that decisively limits the functioning of his will. In this case the will is invalid when:
1) the testator has fallen into a mental or mental disorder at the time of drawing up the will,
2) this disorder has caused an obstacle to the free determination of his 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 drafting of the will, which in the case of the public will begins from the testator's oral declaration before the notary and the witnesses present of his last will until the signing of the drawn up deed.
A mental or mental disorder that decisively limits the functioning of the testator's will is understood, in particular, as any disorder that significantly reduces the ability to objectively control reality, when, in other words, because of this disorder, the free determination of the will is excluded at the time of making the will of the testator with logical calculations, since the latter is dominated by representations, feelings, impulses or influences of third parties.
Determining when in a specific case the free determination of the testator's will is excluded by logical calculations is a particularly delicate and difficult task and must be judged on a case-by-case basis.
So it has been decided that a generalized 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, can cause disturbances at the level of consciousness, create a state of mental confusion, reduced ability to focus and maintain of attention, disorders of spatio-temporal orientation and impairment of cognitive functions with a fluctuating course and alternations in stimulation and depression. In this case the patient is uncooperative and is usually given psychotropic drugs as a consequence of the cumulative adverse effect of the disease on him. The poor mental and mental condition of the aforementioned patient is also reflected in the engraving of his handwriting and signature in his will, when it is drawn up under the above unfavorable conditions of his health, since these are usually expressed with laborious and pathological engraving due to the above unfavorable clinical condition of the image and his insufficient ability to hold the stylus.
Besides, it must be taken into account in each case whether and to what extent the testator's continuous hospitalizations and the extensive taking of specific medication by him alters and disorganizes his personality, so as to preclude the free determination of his will by logical calculations, while an important element it is for a cancer patient if he has drawn up his will at a time when he had stopped the chemotherapy or radiation therapy to which he was undergoing and if at that time his health showed a deterioration.
According to the law, a mental or intellectual disorder decisively limiting the functioning of the will of the testator is required and not the existence of a specific mental or mental illness or disease, obviously because the deprivation of the use of reason due to mental illness is a legal term that is not used in medicine, that is, a term which with difficulty can be precisely defined, since mental illness is understood not only to be a disease of the intellect of the spirit, but in general to any mental disorder. Therefore, this disorder does not have to be due to a specific illness of the testator, but it is sufficient to be diagnosed from his overall mental and spiritual condition. Also, in the sense 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 intellect be clouded by some morbid or non-caused cause, which results in a great degree of confusion of his consciousness and hence his weakness to diagnose the substance and content of his statement. Incapacity is judged at the time the will is drawn up, while its subsequent occurrence or its existence at an earlier stage has no legal effect. However, if it is an incurable disease or a serious mental or mental disorder of the testator, then it is not necessary to prove it at the time of the writing of the will, since it is presumed due to its duration.
Furthermore, according to Code of Notaries the notary must:
a) refrain from drawing up an act that is contrary to the law or to morality and
b) to carry out his duties conscientiously and impartially, explaining to the franchisees the obligations they undertake and the rights they have from the actions drawn up and ascertaining that they are aware of the results of these actions.
From these provisions, it follows on the one hand that the described duties of the notary public do not include the ascertainment of the mental or psychological state of those who make a declaration of will before him, on the other hand that the information that every notarial document must contain does not include the assessment of mental or mental status of the legal practitioner, i.e. whether or not there is a case of legal incapacity. Therefore, the notary who draws up a public will is not competent to confirm whether the person making a declaration of will was (or was not) conscious of his actions or whether he was (or was not) in a mental or mental disorder that limited or did not decisively limit the operation of his will. If, however, he confirms the above, this confirmation constitutes his subjective judgment and perception, which does not prevent the proof of the testator's incapacity, without requiring that the will be challenged for forgery.
Based on the above considerations, the court accepted the following: The testator and subsequently deceased, father of the plaintiffs, died as a result of lung metastases from colon cancer and cardiopulmonary arrest. At the time of his death, his closest relatives were the plaintiffs, his only children, while his wife had predeceased him.
In 2016, the Notary came to the house of the decedent and there it is alleged that the decedent declared orally in front of her and three witnesses his last will, with the consequence that the public will of the deceased was drawn up by the above notary, the content of which is as follows: "When I leave, I wish to leave to N., daughter of my partner for 23 years, whom I consider my daughter, the house in Lutsa with the area surrounding it, as I believe she should take 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 we have spoken to after many years, I leave my share in Rafina and my piece of land in Lutsa jointly, as I consider that I have provided for them financially during the first years of their marriages. Finally, I want to give my sister B. the 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 wish my children would respect my wishes."
In the above manner it is alleged that the decedent installed the defendants sole heirs of the immovable property he had in Artemisa. After the death of the testator, the aforementioned notary displayed the aforementioned will for publication, as a result of which it was published and registered in the will books of the aforementioned court.
The first defendant, however, had become aware of the content of this will before its publication, as with her out-of-court invitation, which she communicated to the children of the deceased testator, she called on them to hand over the keys to the house described in the above will, because she was, according to her claims, an heir to this property. Further, it was shown that the decedent underwent in October 2014 a cruciate resection and liver metastasectomy due to primary metastatic Ca colon. For this reason, he was hospitalized at the General Anti-Cancer Oncology Hospital of Athens "AGIOS SAVVAS", and since then his health condition gradually worsened, and both his submission to the chemotherapy necessary to treat the above-mentioned disease, as well as receiving extensive medication. Specifically, the heir initially received six (6) cycles of Xelox from the attending physicians of the aforementioned hospital and then, due to the worsening of the aforementioned disease, he was given a combination of pharmaceuticals. Subsequently, his treatment was modified, at the suggestion of his doctors, by the administration of a combination of other drugs, but it was stopped, due to the reaction of the heir's body to oxaliplatin, but also to the appearance of leukoencephalopathy, probably related to a pharmaceutical preparation. Subsequently, the treatment continued normally, but with the appearance again of a series of complications, as stated in a medical certificate of the 2015st Pathology-Oncology Department of the aforementioned hospital. The heir's systemic chemotherapy started in the above hospital in XNUMX with the taking of drugs. When the decedent was discharged from the aforementioned hospital, he was prescribed various medications. Subsequently, the heir was hospitalized in the context of treatment of the above disease in the same above hospital several times.
The clinical state of the heir's health was stable, and stable with the recommendation to receive enhanced medication after his 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 above-mentioned hospital and further enhanced, as disturbances were diagnosed in his communication level and in his neurological picture. Specifically, in January 2016 the health condition of the heir began to deteriorate rapidly, and the continuous and increasing medication he received had a direct effect on his mental and intellectual condition and on his general clinical picture. The aforementioned rapid deterioration of the heir's health was evident during his subsequent hospitalization at "SOTIRIA". In more detail, the decedent entered the above hospital with a fever (up to 37,7℃) with a disturbance in the level of consciousness and communication since 24 hours, having received ten (10) days ago the last chemotherapy. In the discharge information note of the doctors of the above hospital, it is characteristically stated, during the examination of the nervous system of the decedent when he entered the above hospital, that it was a confused patient, not oriented in space/time, and in his individual recollection medical history not only the aforementioned condition (colon malignancy since 2004) is mentioned, but also the anxiety disorder. Until his admission to the aforementioned "I SOTIRIA" hospital, the decedent received at home, in addition to the above-mentioned pharmaceutical preparations, which he was advised to take other preparations as well.
The decedent was discharged from the aforementioned hospital without his communication level and neurological picture having been fully restored. Subsequently, he was hospitalized again at "AGIO SABBA", where it was found after an imaging check of the medical tests carried out that there was a deterioration in the lungs, liver and peritoneal effusions, while as stated in the medical discharge note of the above hospital, the heir had a neurological history and he was not cooperating, with the result that it was decided to stop his chemotherapy and to receive supportive treatment from him. Therefore, it is proven that the neurological image of the decedent upon his aforementioned discharge from the Athens hospital "SOTIRIA" had not only not been fully restored, as the appointed technical advisor of the defendants unfoundedly claims, but on the contrary had not shown any substantial improvement. In fact, to the already strengthened medical treatment of the heir, another treatment was added and in particular the taking of an antipsychotic drug that contains the active substance haloperidol and belongs to the category of strong neuroleptic drugs and in particular to the group of butyrophenones with a wide range of action, it is indicated, among others, in cases of psychotic states, psychomotor agitation, disturbed (violent or aggressive) behavior 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 states and neuroses and to control psychomotor agitation. It should be noted that the heir continued to receive until his death, among others, the above-mentioned medicinal preparations Seropram and Neurotin, of which the first belongs to the category of antidepressants, while the second is used for the treatment of epilepsy and peripheral neuropathic pain, i.e. long-lasting pain due to nerve damage. In particular, the Seropram preparation was administered to the heir both to treat depression and to prevent the occurrence of new depressive episodes, since the active substance citalopram administered through the above medication to the patient helps to correct chemical disorders in the brain of the one showing symptoms 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 heir on the recommendation of the doctors of G.N. "OR SALVATION", in combination with all of the above-mentioned 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 been restored, since in this case the attending physicians would have certainly either reduced the dosage of the above preparations, or would have replaced them with other medicinal preparations with a reduced effect on the mental health of the heir, or would have discontinued their administration. On the contrary, the mental and intellectual health of the decedent was in such a state that a few days later, as mentioned above, you added to the medication of the decedent, among others, the psychotropic and antipsychotic preparation Nozinan, which would not have been administered to the decedent if indeed he did not show any significant mental disorder. Also, a particularly crucial element in the case at hand is the fact that the deceased was discharged from the Athens hospital "ST SAINT SABBAS" on 29-2-2016:
a) by definitively stopping the chemotherapy he was receiving and
b) with instructions for receiving the above medication, which, as characterized in the above-mentioned medical certificate dated 30-5-2016, had the character of supportive - palliative treatment, i.e. treatment that did not aim to improve the mental and clinical image of the decedent , as it was irreversible, but to improve the conditions of his remaining life, given that he was going through the last stage of his illness, and his general condition, including his mental and intellectual condition, was burdened.
Specifically, as stated in the expert report of a neurologist-psychiatrist during the period from February 2016 until the critical time of drawing up the challenged public will, the physical condition of the heir - showed a continuous deterioration, while the state of his mental health showed a burden , particularly the depressive disorder he was suffering from, as well as his mental functioning. The drug treatment for the cancer disease had been stopped, while the heir received during the above period only drugs for the neuropsychiatric disorders from which he suffered. During the time period from the end of February of the year 2016 until 7-3-2016, the heir was unable to recognize the plaintiffs - his children, refused to feed and was completely unable to write or sign documents. In particular, he communicated with his relatives mainly through simple one-word affirmative or negative answers, having a limited ability to verbally render meanings and without having the ability to self-serve and take care of his personal affairs. It is indicated that shortly before his discharge from the above hospital on 26-2-2016, the heir, having hallucinations, turned to his son-in-law and said: "bring the ladder so we can take it to the roof". At the same time, the heir was not in a position on 15-3-2016 to sign a single responsible declaration. The heir, at the beginning of March 2016, was now showing confusion, hallucinations, loss of memory and ability to concentrate, but also the inability to form a specific judgment and perception. In particular, when the above-mentioned notary came to his home on 7-3-2016 in order to draw up the contested will before her, she addressed the heir before drawing up the will, to state his personal details, including his address residence and the number of his police identity card, the latter replied that he lives in a different street than the one he actually lived in, as well as that he was the holder of a different personal data. Furthermore, while the heir was bedridden during the above time and his state of health was particularly burdened as above, it is alleged, according to the challenged will, that he used a topographical chart in order to identify his properties in Artemisa Attica. The boundaries of the above properties are said to have been indicated in December 2015 by the inheritor, while on the topographic map there is a signed certification by the same Notary that this topographic map was attached to her contract, without, however, proving what the object was of this contract. However, the aforementioned mental and intellectual condition of the inheritor was not such that he could make use of the above topographical diagram himself, much less perceive and distinguish in it his above-mentioned properties. Also, it should be pointed out that the signature put on the aforementioned public will on behalf of the heir does not resemble at all his usual elaborate signature with specific morphological characteristics, which he used to put, which is clearly visible on the topographical diagram. The signatures put by the heir on the challenged will, on the second and fourth pages thereof, are terrible, irregular in shape and course of writing and indicate a significant impairment of his higher cognitive functions. The fact, moreover, that even the above two signatures put forward do not resemble each other, demonstrates the testator's inability to sign, since it is clear that he made a particularly great effort to direct the pen on the paper. The above facts demonstrate that the heir, at the time of the drafting of the will, did not have the ability to verbally express a final will, especially with the above specific content, in a structured and even manner, even making use of a topographical diagram, as he did not have the language and expressive ability, judgment and perception required for this, being in a mental and intellectual disorder such that he could not remember either the exact address of his residence, nor the number of his police identity card. From the above facts, it is proven that the level of mental functioning of the decedent on 7-3-2016 was significantly reduced in terms of spatial-temporal orientation, attention, recognition of familiar persons, memory capacity and the functioning of his judgement. This state of his psycho-intellectual functioning constitutes a mental and intellectual disorder that rendered him incapable of accurately understanding the content and essence of the aforementioned will, because it significantly limited the functioning of his will.
ANASTASIA CH. MELIOU, LAWYER PARREEIO ICE
403 Mesogeion Ave., Agia Paraskevi, Tel. 6945-028153, 213-0338950, e-mail: natmil@otenet.gr, www.legalaction.gr, fb: Anastasia Miliou
photo https://pixabay.com/el/
