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NSW Supreme Court declaration that deceased’s Will is of no effect

Costin Stan



A Will is a legal document which sets out a person’s desires as to who will be executor of the estate and who will receive property (which can include, money, tangible assets, shares etc.) when that person dies.

Given its importance, it is always recommended to seek legal advice when deciding to prepare a Will because there are legal requirements which must be met for it to be valid. Furthermore, careful consideration will also reduce the possibility of the estate being subject to family provision claims.

In the event of wanting to know more about family provision claims, we recommend that you read the following article.

Recent case

If a determination is made that the testator lacked testamentary capacity at the time the Will was made, the Will is of no effect. His Honour, Justice Slattery of the Supreme Court of New South Wales was required to determine whether a will is of no effect in the case of Dybac v Czerwaniw; The Estate of the Late Apolonia Czerwaniw [2022] NSWSC 1279.

Briefly, the facts of the case were as follows:

  1. Sometime in 2005, Apolonia made a Will in which she divided her assets equally between her two children, Zina and Basil. This division was also recorded in a codicil that Apolonia made in 2009.
  2. In early January 2020, Apolonia was admitted to hospital due to vascular obstruction in her leg. Steps were taken by the treating doctors to restore blood flow to her leg but were unsuccessful and an urgent vascular surgery was scheduled.
  3. A few hours prior to the operation (and as a result of normal practice) Apolonia was given anaesthetic agents and other drugs.
  4. Immediately before the scheduled operation, Apolonia refused consent to the operation unless she could make a Will whereby she would leave the most important asset, the home, to Basil.
  5. Because the treating doctors were concerned that her life would be at risk if they did not proceed with the operation, they agreed to assist Apolonia make a record of her intentions. The doctors wrote out a document to give effect to what they understood Apolonia said to them and titled the document “Change of Will” which Apolonia signed.
  6. The operation commenced shortly thereafter and was successful, but Apolonia died on 28 January 2020 as a result of other health complications.
  7. Zina commenced Court proceedings where, amongst other relief, she sought declaratory orders that the “Change of Will” document is of no legal effect in circumstances where Apolonia lacked testamentary capacity.
  8. Evidence was adduced before the Court by both Basil and Zina, Apolonia’s treating doctors and three other medical experts which discussed the various implications that the anaesthetic agents and other drugs had on Apolonia at the time the “Change of Will” document was made.

General Principles

It is important to note that mere residual doubt as to testamentary capacity is not sufficient for a Court to decide that the Will is not valid.

The party relying on the Will carries the onus to establish that the deceased had testamentary capacity at the time the Will was made. In the event of there being substantial doubt cast by the evidence on the testator’s capacity, the Court will generally determine that the Will is not valid unless it can be satisfied that the testator was of sound mind, memory and understanding when the Will was made.

When deciding whether to determine that the Will is of no effect, his Honour repeated the established law relating to testamentary capacity in Australia which was first set out by Cockburn CJ (see Banks v Goodfellow (1870) LR 5 QB 549).

As a general rule, in the event of the Court making a determination that the testator had testamentary capacity at the time the Will was made or alternatively, not being fully satisfied that the testator did in fact lack testamentary capacity, it must also consider whether the testator knew and approved the contents of the Will.


Based on the evidence before the Court, his Honour ultimately made a declaration that the “Change of Will” document is not a valid testamentary instrument and was not valid.

When making the Orders, his Honour considered all the evidence and that:

  1. the “Change of Will” document was drastically different to Apolonia’s earlier testamentary intentions that her two children should each receive half of her estate; and
  2. she was given anaesthetic agents and other drugs shortly before the preparation of the “Change of Will” document which would have fettered her mind.

Seek advice early

It is important that you seek advice early if you are considering making an application to set aside a Will due to the testator lacking testamentary capacity or other reasons as there are governing rules and multiple factors which have to be taken into account prior to the making of any such application.

Costin Stan at FCW Lawyers is a Contested Estates practitioner and is always wiling to help you understand what your rights are and will always guide you to make the best decisions.

Costin Stan


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