The First Hall of the Civil Court, presided over by Mr Justice Anthony Ellul, on September 26, 2013, in the case “Lorenza Bonnici, Catherine Buttigieg and Maria Rosaria Galea v Maria Dolores Mifsud, Anna Cassar and others” held, among other things, that incapacity could not be presumed, simply because before or after the will was made, there were moments when the testator did not have the mental faculty of understanding the consequences of her acts.
The facts in this case were as follows.
Lorenza Bonnici, Catherine Buttigieg and Maria Rosaria Galea were all children of Salvatore and Carmela Cassar. Their two brothers were interdicted according to the decree of the Second Hall and their sister Maria Dolores Mifsud was their curator.
On October 21, 1992, their parents made a unica charta will in the acts of Notary Zarb. The father died on June 28, 1997, and on October 13, 1997, his widow Carmela Cassar made another will.
Lorenza, Catherine and Maria Rosaria complained that their mother did not possess sufficient mental faculties at the time of her second will, with the effect that she could not appreciate what she was doing. They stated that their mother was pressured to make this will to favour Maria Dolores.
Faced with this situation, they filed legal proceedings against their sister, Maria Dolores:
• to declare that their mother Carmela did not have sufficient mental capacity at the time of her second will, dated October 13, 1997; that she could not appreciate her actions and that she was compelled by threats by Maria Dolores.
• to declare that this second will of their mother was absolutely null and without effect at law.
In reply, Maria Dolores raised the plea of nullity of the legal action, as the claims were not permissible in terms of article 692 of the Civil Code. As regards the merits, she defended the validity of her will, dated October 13, 1997.
It was stated that when Cassar made her will, she was mentally sane at law, in order to dispose her property after her death. She denied further that their mother was coerced to write a second will.
At issue was whether Carmela Cassar was mentally fit and whether she was totally deprived of her free will, by use of threats from her daughter, Maria Dolores. Article 597 of the Civil Code provides:
“The following persons are incapable of making wills:
(a) those who have not completed the 16th year of their age;
(b) those, who, even if not interdicted, are not capable of understanding and volition, or who, because of some defect or injury, are incapable even through interpreters of expressing their will. Provided that a will can only be made through an interpreter if it is a public will and the notary receiving the will is satisfied after giving an oath to the interpreter, that such interpreter can interpret the wishes of the testator correctly;
(c) those who are interdicted on the ground of insanity or of mental disorder;
(d) those who, not being interdicted, are persons with a mental disorder or other condition, which renders them incapable of managing their own affairs at the time of the will;
(e) those who are interdicted on the ground of prodigality, unless they have been authorised to dispose of their property by the court which had ordered their interdiction. Provided that a person interdicted on the ground of prodigality may, even without the authority of the court, revoke any will made by him prior to his interdiction.”
According to medical records, Cassar suffered from the loss of memory. At times, she would not recognise her husband and children and there were times when she would be disorientated.
She suffered from bouts of depression and she had been treated at Mount Carmel Hospital. Between August 19, 1998, and September 30, 1998, she went to live at St Vincent de Paul Hospital, in the period when Maria Dolores had an operation.
The court noted that one month before she made her will, she was certified to be suffering from depression but there was no evidence that she was not capable of exercising her civil rights. It could not presume that Cassar was suffering from dementia. Though it was true that she received treatment for dementia, there was no final conclusion.
The court felt that it could not conclude that Cassar was not in her senses to make a will, despite allegations by claimants that at the time of her will, she suffered from depression. The court remarked that the two claims made by plaintiffs were conflicting. They first claimed that she lacked capacity, while their second claim assumed that she had mental capacity and that she was compelled by threats to make this will.
The court explained that a person was presumed to have mental capacity and that the burden of proof rested on the person, making the claim. A testator had to be in a position to reason, and appreciate the consequences of his acts. The proof of incapacity had to be conclusive and if there were doubts, this went to benefit the validity of the will.
In Mifsud v Giordano datedMarch 8, 1952 (Vol. XXXVI.II.404), it was held that it was enough if a testator knew or understood what was happening. A testator need not be fully sane.
The court was of the opinion that the medical certificate dated September 4, 1997, was not proof that on October 13, 1997, Cassar was mentally incapable of making a will.
It appeared that she had memory problems. There was no proof that on October 13, 1997, she was not capable of knowing what she was doing. Incapacity could not be presumed, simply because before or after the will, there were moments when the testator did not have the mental faculty of understanding the consequences of her acts.
The proof of incapacity had to be conclusive and if there were doubts, this went to benefit the validity of the will
This did not mean, on the other hand, that the court did not have to consider the conditions before and after the will was made.
In view of the evidence and testimony, however, the court was not convinced that on the October 13, 1997, Cassar was not mentally fit to make a will. It was not true that she was ‘permanently’ in a state of confusion. The court could not presume that she was mentally incapable at the time of the will.
The claimants contended that the content of the will was proof in itself that the testator was mentally instable. It did not make sense that she left her car to her handicapped offspring.
She made no mention that a particular legacy was a legato di cosa altrui, nor did she tell her notary that she had previously made a unica charta will.
They also noted that her signature had changed on the second will. The court, however, found no proof of instability. It noted that:
• The car was bequeathed to her children with a disability to cater for their needs.
• Her signature on the will did not indicate whether she had mental problems.
• Though the notary was not informed of her unica charta will, the court did not give this importance and said that certain legacies were identical. Nor was it significant that she did not mention that she gave a legato di cosa altrui. Her notary had no doubt that at the time of the will, she knew what she was doing.
While it was not prudent for Maria Dolores to be present at the time of the will, the fact remained, observed the court, that Maria Dolores looked after her mother and handicapped sister. There was no proof that Cassar was coerced or threatened by her daughter to make a new will.
The court maintained that there was a difference between “influenced” and “threatened” – a person could be influenced without any threats. The court was not convinced that there were any threats in the circumstances.
For these reasons on September 26, 2013, the First Hall of the Civil Court gave judgment by rejecting all claims of Lorenza, Catherine and Maria Rosaria, and refused to accept defendant Maria Dolores’s plea of nullity.
It accepted Maria Dolores’s defence that her mother was mentally fit to make a will and did so, without threats and coercion.
Dr Karl Grech Orr is a partner at Ganado Advocates.