The 2022 NSW Supreme Court case, Dybac v Czerwaniw, offers a stark reminder of the complexities of testamentary capacity. The testatrix, Apolonia Czerwaniw, executed a new will just before emergency surgery, dramatically reversing her 15-year intention to split her estate equally between her two children.
The “Change of Will” gave her entire estate substantially to her son. The Court ultimately invalidated the document, concluding that a combination of factors displaced the presumption of capacity. These factors included the sudden, uncharacteristic nature of the decision, the absence of legal advice, and the likely cognitive impact of a powerful cocktail of pain-relief and amnesic medications administered before signing. The judgment underscores that a will must be the product of a clear, comprehending, and rational mind