Appeal Court gives advice to lawyers drafting wills

The Court of Appeal has reminded legal practitioners of the best-practice principles they should adhere to when drafting wills of elderly or infirmed clients.

The principles were underscored in a March 20 ruling involving the execution of an elderly woman’s will in 2010.

In a unanimous ruling, Justices of Appeal Maria Wilson, Ronnie Boodoosingh and James Aboud dismissed the appeal and cross-appeal of four of the woman’s children.

At the heart of the appeal was the validity of the 2010 will of Marie Antoinette Nothnagel, which substantially altered the distribution of her estate to her five children compared to a 2004 will.

In 2023, Justice Ricky Rahim declared the 2010 will was not valid, finding favour with the 2004 will and ordered the probate of it.

Rahim had to decide if Mrs Nothnagel had testamentary capacity when executing the 2010 will and whether she knew and approved its contents.

Although he found both wills to be rational, Rahim found that there was clear evidence Mrs Nothnagel “lacked the capacity” to understand the extent of her instructions to her attorney Timothy Hamel-Smith, who oversaw the will’s preparation.

Rahim pointed to several shortcomings by Hamel-Smith, finding that he had not engaged in sufficient discussions with Mrs Nothnagel to assess her testamentary capacity or to determine whether she knew and approved of the will’s contents.

Had he done so and maintained a record of these interactions, he might have been able to justify his assessment, was Rahim’s finding.

At the appeal, the attorney for Mrs Nothnangel’s son, Christian, who was the main beneficiary and executor of the 2010 will, urged the appellate court to reject Rahim’s findings on Hamel-Smith’s evidence.

However, Boodoosingh, who delivered the ruling, said he was unable to agree with attorney Ravi Heffes-Doon.

“A credible witness can be unreliable and there is no inconsistency between the two findings. None of the judge’s conclusions about Mr Hamel-Smith’s evidence can properly be faulted.

“They certainly cannot be considered to amount to an unreasonable evaluation of the evidence sufficient for the appeal court to disturb them.

“...There is nothing in his evaluation of Mr Hamel-Smith’s evidence that can be considered unreasonable, and I agree with the judge’s observations.

“Overall, the judge’s analysis was careful and thorough and based on the evidence as a whole, I agree with it,” Boodoosingh ruled.

After analysing Rahim’s ruling and the evidence he considered, Boodoosingh held he “correctly directed himself on the law.”

“His findings were detailed and careful. He demonstrated a good grasp of the evidence and he made clear conclusions about the various witnesses.”

In the cross-appeal, Christian’s siblings, Nicholas, Voncille and Veilchen, executors of the 2004 will, complained of Rahim’s statement on the “golden rule” which, he noted, was not a rule of law but had it been followed, might have avoided litigation.

The golden rule is a best practice for making a will by the elderly and infirm, requiring a medical practitioner to witness and approve it. Rahim noted it was not a requirement under the Wills and Probate Act.

Boodoosingh said the judge was correct that it was not a rule of law and noted that legal practitioners must act prudently.

“An important lawyer function is to ensure that, as far as possible, a testator’s (a person who makes a will) free and unimpaired wishes should be given effect to.

“This requires that the process involved in the solemn act of preparation and execution of a will should be able to withstand scrutiny.”

Boodoosingh said while no rule could be laid down, certain steps could be followed, including the guidelines in other jurisdictions.

He pointed to guidelines from the Law Council of Australia and the Law Society of England and Wales, on assessing mental capacity in will-making.

“These provide useful ‘best practice’ advice to legal practitioners on the test for assessing mental capacity and what legal advisers may do to satisfy themselves that testators have the requisite mental capacity at the time of the making of a will.”

He provided seven basic, best-practice guidelines, which, he said, “Will go a long way to ensuring that a testator has testamentary capacity.

“They will also allow the practitioner to give helpful evidence about the process utilised in the making of the will if called upon to do so.

“This will, in turn, allow the court to make a proper decision on whether a challenged will should be upheld.

“Additionally, they are consistent with the practices that are expected to be adopted by a competent legal practitioner in the discharge of his or her duties to the client, beneficiaries and the court in keeping with the Legal Profession Act.”

On the siblings’ cross-appeal on undue influence, Boodoosingh said it would be difficult for the appellate court to assess without seeing and hearing the witnesses.

Senior Counsel Colin Kangaloo, Aaron Bethel and Danielle Inglefield represented the Nothnagel siblings.

Christine Ragoobar also represented Christian.