Safeguarding vulnerable testators from vitiated consent : an analytical study of the protective role of the notary

Abstract

A will is arguably the notarial deed which by its nature, elicits the rawest form of human emotion when being drawn up since the testator intends to dispose of the accumulation of assets that he has earned throughout his life and his legacy to individuals or recipients of his choice, usually those of which he holds dear or feels that deserve his estate. Toullier holds that a will is one of the greatest comforts that a dying individual experiences. This is why it is of the utmost importance, perhaps even more so than other deeds, that the dispositions contained in wills are entirely an expression of the testator´s will. Having a determining element of outside influence or coercion in a deed of sale for instance, while still bringing about unjust consequences on one of the parties to the deed, is incomparable in substance to testamentary dispositions being inconsistent with the testator´s wishes where the legacy and estate of an individual is at stake. Ensuring the credibility and genuineness of testamentary dispositions should be given high regard in the notarial profession. The notary´s role in this aspect is critical because when one looks at the process of drawing up a will, the notary is the only person besides the parties themselves and the witnesses who is afforded the opportunity of recognising and halting the publication of wills tainted by opportunistic outside influences. Analysing the local situation which essentially pertains to most of Europe and other developed countries, the need to shield vulnerable testators from the predatory intentions of those who seek to seize their estate is gradually increasing. This is due to the fact in Malta and most of Europe, the average life expectancy of the population continues to rise, and this is inevitably associated with a greater possibility of deteriorating mental capacity and cognitive impairment. The challenging of wills is also predicted to escalate as long as the process of an aging population and medical advancements continue. This reality, coupled with the fact that there will essentially always be individuals who intend to take advantage of these vulnerable testators, highlights the need for the legislator to substantiate Malta´s current legislation with additional layers of protection concerning vulnerable testators. It is important to keep in mind that not every instance of influence is sufficient to invalidate a will and render the testamentary dispositions of said will different from the testator´s true intentions. It is human nature to try and place oneself in a more advantageous position when the opportunity presents itself. In the historic case of Wingrove vs Wingrove, Sir James Hadden stated in his decision that “It is only when the will of the person who becomes a testator is coerced into doing that which he or she does not desire to do, that it is undue influence.” Despite the critical importance and potentially grievous ramifications surrounding this area of law, the notary is left largely unguided when it comes to dealing with instances of coercion of testators. In addition, one must keep in mind that it is extremely difficult to challenge the validity of a will on the basis of lack of understanding and volition on the part of the testator, since the testator would not be present to verify or deny claims made in Court and because a will is usually drawn up years before it is opened and its contents take effect. This makes it even more challenging since one must prove in Court that at the moment when the will was drawn up, the testamentary dispositions did not reflect the desires of the testator. This sheds light on the current precarious position of the notary and the necessity of legislative assistance for him to able to adequately deal with these cases. A diligent notary must be attentive to any potential indicators that such pressure is being applied on the testator. Various red flags have been identified over time by legal professionals which may serve as a valuable guideline for a notary aiming to ascertain that such an illicit practice is not taking place in his office. One of the most evident signs of this is when the current testamentary dispositions are inconsistent from those previously drawn up by the same testator in previous wills, while substantially benefitting an individual. Such a situation should give rise to questions on the part of the notary and it should not simply be ignored or assumed to be mere coincidence. While the testator is legally free to dispose of his property in an uneven manner, cases where family members or other close relatives are excluded to the benefit of an individual currently holding a position of potential power over the testator, such as a caretaker could be an indication that the testamentary dispositions being made in the will at hand are not a reflection of the testator´s intentions. Furthermore, the notary must stay attentive to any individuals accompanying the testator who attempt to dominate said testator when the latter is attempting to explain what he wishes to include in his will. Such an individual may be attempting to overpower the testator and influence him into making testamentary dispositions in his favour. There is nothing to exclude the possibility of coercion being applied by the witnesses, who are generally brought in to ascertain that due diligence was present in the drawing up of the will, particularly when the witnesses are individuals who have some sort of connection with the testator. Ultimately, if pressure to a substantial degree is being applied on a testator, there will likely be signs highlighting this that a diligent notary will be able to identify. Despite this, one should be mindful that in order for a will to be challenged successfully on the aforementioned basis, the vitiated consent of the testator must be consistent with what legislation and case law have established.