Certifying a Will for a Testator Who Cannot Speak
Notary Siarhei is called to a hospital to certify a will. The testator, Mikalai, is 78, has advanced laryngeal cancer and can no longer speak, but he writes short notes and nods. His daughter is present and answers many questions for him. A second daughter is not present. Mikalai's notes indicate he wants to leave his flat to the present daughter 'because she cares for me'. The notary reads the will aloud, asks Mikalai to confirm by nodding, and certifies. Two months later Mikalai dies and the absent daughter contests the will, alleging it was signed under influence and that the notary failed to establish the testator's capacity and free will.
1. Did the notary act correctly in establishing the testator's will and capacity? What should he have done differently?
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The certification is defective in its method of establishing capacity and free will.
Capacity. The notary must satisfy himself that the testator understands the nature of the act and its consequences. Advanced illness and inability to speak do not by themselves destroy capacity, but they require a positive assessment, not a nod. The notary should have asked open questions answerable in writing, recorded the questions and the written answers in the file, and noted the testator's alertness and orientation. A file containing only 'nodded' is weak evidence.
Free will and the daughter's role. The daughter answered questions for the testator. That is a red flag: the notary cannot tell whether the answers were the testator's or hers. The correct approach is to interview the testator alone (or with a medical professional, not the beneficiary), and to record that the beneficiary was excluded from the interview. If the testator cannot communicate reliably, the notary should decline to certify rather than guess.
Reading and confirmation. Reading the will aloud is good, but confirmation must come from the testator in a verifiable form. A written 'I confirm' in his own hand, or a signature plus a note, is much stronger than a nod.
Medical evidence. The notary should request a medical certificate of capacity or at least record the treating doctor's opinion.
Conclusion: the notary should have restructured the process - private interview, written questions, medical confirmation, documented confirmation - and, if that was impossible, refused. The current file will struggle to rebut the challenge.
2. What is the significance of the absent daughter, and what should the notary have told the testator about her?
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The absent daughter is not a party to the will and her consent is not required - a will is a unilateral act and the testator is free to disinherit or favour any heir. However, she is highly relevant in three ways.
1. Duty to explain consequences. The notary must explain that the will can be challenged by persons entitled to a compulsory share, and that certain close relatives (minor or disabled children, a disabled spouse, dependent parents) take a compulsory share regardless of the will. The testator should be told which of his heirs fall into that category. If the absent daughter is able-bodied and adult, she has no compulsory share; the notary should have established that and recorded it.
2. Duty to warn of challenge. The notary should have advised the testator that a will made in a hospital, in the presence of one beneficiary and excluding another, is a predictable target for a claim of undue influence, and that documenting his independence is in his own interest.
3. Duty of confidentiality and neutrality. The notary must not take sides or disclose the will's contents to the absent daughter, but must ensure the file shows the testator's choices were his own.
The notary's failure was not that he ignored the absent daughter's rights - she had none to consent - but that he did not use her absence as a prompt to test and document the testator's independence.