The Court of Appeal, composed of Chief Justice Silvio Camilleri, Mr Justice Albert J. Magri and Mr Justice Tonio Mallia, on March 25, in the case “Carmelina Busuttil vs Helen Portelli et” held, among other things, that the mental capacity of a testator was presumed and his incapacity had to be proven by conclusive evidence.
The facts in this case were as follows:
Carmelina Busuttil was the second cousin of deceased Anthony Bonnici who died on January 1, 1992 at the age of 87 years.
Upon the opening of succession of the deceased, Ms Busuttil discovered that he had appointed Helen Portelli as his universal heir.
Though her father had inherited Anthony Bonnici’s home by title of legacy, she still felt aggrieved and wished to challenge the validity of his will.
Ms Busuttil claimed that the will was made at a time when Anthony Bonnici (now deceased) was mentally unfit. She stated that he was under the influence and control of the Portelli family, who allegedly took advantage of his old age and condition.
It was alleged in addition that:
The Portelli family had taken his furniture and money;
His will was made under pressure;
The deceased had bequeathed property, which did not belong to him, and which she was entitled to a share according to law.
Faced with this situation, Ms Busuttil proceeded by filing legal proceedings against the Portelli family, requesting the court:
To declare Anthony Bonnici’s testament dated June 4, 1985 to be null and void, on grounds that the deceased lacked the necessary mental capacity to make a valid will and on grounds that he had been deceived;
To declare that Anthony Bonnici had no right to dispose of her assets, and
To order the devolution of Anthony Bonnici’s estate according to law.
The family Portelli, in reply, contested Ms Busuttil’s lawsuit which, they said, was unfounded both in fact and at law.
They disputed the allegation that Anthony Bonnici lacked the mental capacity to make a valid will.
On December 16, 2008, the Court of First Instance dismissed Ms Busuttil’s requests.
After making an assessment of the facts, the Court of First Instance concluded that there was no evidence which demonstrated that deceased Anthony Bonnici lacked the necessary intellect, as alleged by Ms Busuttil.
It considered the testimony of several persons: his notary, an ex-police superintendent for the Sliema district and a priest who had known the deceased in his lifetime. They all confirmed that Anthony Bonnici never displayed signs that he was mentally unfit. Notary M. Gambin who had assisted the deceased in making the will testified that he had considered Anthony Bonnici mentally fit and that there was no need for any medical certificate, even if when he made his will, he was 81 years old.
The notary said that it did not appear that Anthony Bonnici was under moral duress to bequeath his property in a certain way.
It resulted that:
Anthony Bonnici had always been weary of Ms Busuttil;
She had demanded payment in compensation for looking after his sister;
She was jealous of his good relationship with the Portelli family; and
She had been found guilty of making false reports.
As rightly stated by the legal referee in this case, the mental capacity of a testator was presumed and that his lack of capacity had to be proven; re G. Formosa vs G. Axiak (App. Civ dated June 20,1938). The evidence required to establish mental incapacity had to be clear, unequivocal and conclusive; re: G. Harmsworth et vs S. Bezzina et (PA dated December 6, 2002).
The burden of proof rested with the person, who made the allegation re. P. Farrugia vs C. Farrugia et (PA dated October 5, 2004).
In the circumstances the court was not satisfied with the evidence. In J. Harmsworth et vs S. Bezzina et ( PA December 16, 2002 it was held that “for a testator to have legal capacity to make a will, it was not necessary for him to be in a perfect mental condition. It was sufficient if he had the faculty to reason, and to know what he was doing”.
It noted that the dispositions in Anthony Bonnici’s testament also appeared to be reasonable.
The court in addition dismissed Ms Busuttil’s claim that Anthony Bonnici had bequeathed property in his will which belonged to her.
Aggrieved by the decision of the First Court, Ms Busuttil entered an appeal, calling for its revocation.
On appeal, she submitted that the Court of First Instance was null.
She claimed that the Court of First Instance refused her request to postpone the case, despite her medical condition and thereby denied her the right to “equality of arms”.
On March 25, 2011, the Court of Appeal gave judgment by dismissing her appeal and by confirming the decision of the Court of First Instance. It did not consider her grievances to be justified.
The following reasons were given for the court’s decision:
Ms Busuttil produced no medical certificate to support her allegation, that she was not well enough to appear in a court sitting. It was true that the First Court refused her request to appoint an additional referee, but for a period of five months, she took no action to safeguard her rights.
It was possible, even when on June 25, 2008, the case was postponed for judgment, for her to submit her note of observations, which she did not do.
The First Court was correct not to allow proceedings to be unduly procrastinated. #
All the evidence had been heard. The legal referee had already presented his report and there was no evidence that Ms Busuttil, was not physically capable for medical reasons to attend court sittings.
The Court of Appeal maintained that the appointment of additional referees was always within the court’s discretion and the First Court had every right to refuse this request. A court of appeal should not disturb the court of first instance’s appraisal of the facts unless for grave reasons.
From the evidence, it was amply resulted that all Ms Busuttil’s claims had not been proven. It was not proven that:
The deceased Anthony Bonnici lacked mental powers to make a valid will;
And that the deceased had bequeathed property which did not belong to him.
The Court of Appeal was satisfied that the First Court had made a good appreciation of the facts and for these reasons rejected the appeal.
Dr Grech Orr is a partner at Ganado & Associates.