Vukotic v Vukotic [2013] VSC 718

The plaintiff and the defendant in this case were brothers.  Both were nephews of the deceased, and also qualified doctors.

The defendant was appointed as the executor of the deceased’s last will.  He sought a grant probate.  The plaintiff tried to block this, by filing a caveat claiming that the last Will of the deceased was invalid due to lack of capacity. 

The last Will had substantially reduced the plaintiff’s entitlements compared to the previous Will.

The deceased signed the last Will on 13 June 2010 at Box Hill hospital.  She had been admitted with respiratory pain the previous week and was diagnosed with lung cancer.  She was discharged on 9 July 2010 and died on 25 July 2010.  The discharge sheet from Box Hill Hospital listed a number of complaints, but there was no record of dementia or any like condition.

Numerous witnesses gave evidence for both sides, including the solicitor, doctors, a friend of the deceased and the parties. The Court dismissed the plaintiff’s caveat, finding there was insufficient evidence to prove incapacity. 

This case highlights the importance of making a will early.  Wills made later in life can often be challenged on grounds of incapacity, and the costs of litigation can be enormous.  Unfortunately, with an ageing population, cases such as this could become increasingly common in Victoria.