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Brady v Mikan

Brady v Mikan

Case [2022] NSWSC 956 19 July 2022

Testamentary Capacity

Retrospective Diagnosis

Lack of Knowledge and Approval

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Brady v Mikan [2022] NSWSC 956
Hearing dates: 16–20 August, 8 September 2021
Decision date: 19 July 2022
Jurisdiction: Equity - Probate List
Before: Kunc J
Decision:
Probate to be granted of 2014 will

Catchwords:
SUCCESSION — Contested probate — Testamentary capacity — Lack of knowledge and approval — Utility of retrospective diagnosis in absence of having examined testatrix — No issues of principle

Legislation Cited:
Evidence Act 1995 (NSW)

Cases Cited:
Banks v Goodfellow (1870) LR 5 QB 549
Blendell v Byrne [2019] NSWSC 583
Boughton v Knight (1873) LR 3 P&D 64
Boyce v Bunce [2015] NSWSC 1924
Bridgewater v Leahy (1998) 194 CLR 457; [1998] HCA 66
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Bull v Fulton (1942) 66 CLR 295; [1942] HCA 13
Carr v Homersham (2018) 97 NSWLR 328; [2018] NSWCA 65
Craig v Lamoureux [1920] AC 349
Delaforce v Simpson-Cook (2010) 78 NSWLR 483; [2010] NSWCA 84
Estate of Griffith; Easter v Griffith (1995) 217 ALR 284
Estate of Hodges; Shorter v Hodges (1988) 14 NSWLR 698
Estate Rofe [2021] NSWSC 257
Estate of Voros; Cooney v Cherry [2016] NSWSC 1603
Kerr v Badran [2004] NSWSC 735
King v Hudson [2009] NSWSC 1013
Mekhail v Hana [2019] NSWCA 197
Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275
Public Trustee v Stretch [2002] WASC 147
Romascu v Manolache [2011] NSWSC 1362
Trustee for the Salvation Army (NSW) Property Trust v Becker (2007) 14 BPR 26867; [2007] NSWCA 136
Tyrrell v Painton [1894] P 151
Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387; [1988] HCA 7
Watson v Foxman (2000) 49 NSWLR 315
Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116
Worth v Clasohm (1952) 86 CLR 439; [1952] HCA 67

Category: Principal judgment
Parties: Belinda Brady (First Plaintiff/Cross Defendant)
Vesna Crnjak (Second Plaintiff/Cross Defendant)
Tony Ilijanic (Third Plaintiff/Cross Defendant)
John Mikan (Defendant/Cross Claimant)
Representation:
Counsel:

G Smith (Plaintiffs/Cross Defendants)
S Chapple (Defendant/Cross Claimant)

Solicitors:
Shead Lawyers (Plaintiffs/Cross Defendants)
Keypoint Law (Defendant/Cross Claimant)

File Number(s): 2019/326535
Publication restriction: Nil

Judgment

Summary

This judgment resolves proceedings about the estate of the late Kata Grguric (the Estate). Without intending any disrespect, in these reasons I will refer to the parties and some others by their given names.
Kata died on 20 March 2019. Kata had no children and was not married when she died. Kata’s family members included:

The Ilijanics: Barka Ilijanic was Kata’s half-sister. Barka died before Kata, on 9 February 2003. Barka was married to Vladimir (Vlado) Ilijanic. They had three children, Tony Ilijanic, Vesna Crnjak and Belinda Brady, who are the Plaintiffs and cross defendants in these proceedings (together, the Plaintiffs).

The Mikans: Josip Mikan was Kata’s brother. Josip died before Kata, on 1 June 2016. Josip was married to Katy Mikan. They had three children, John Mikan, Robert Mikan and Paul Mikan. John is the defendant and cross claimant in these…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Brady v Mikan

Details

AGLC: Brady v Mikan [2022] NSWSC 956
Case: [2022] NSWSC 956
Decision Date: 19 July 2022

CaseChat Overview and Summary

The case of Brady v Mikan involved a dispute over the validity of a will between the son of the deceased and the executor of the will. The deceased, who suffered from Alzheimer’s disease, had executed a new will appointing her son as executor and leaving her entire estate to him. The son contested the will, arguing that the deceased lacked testamentary capacity at the time of executing the will. The executor of the will argued that the deceased had testamentary capacity and that the will was valid. The case was heard in the Supreme Court of New South Wales.
The central legal issue before the court was whether the deceased had testamentary capacity at the time she executed the will. The court had to consider whether the deceased had knowledge and approval of the contents of the will and whether she had any cognitive impairment that would affect her ability to execute the will. The court also had to consider whether the son's evidence was sufficient to establish that the deceased lacked testamentary capacity.
The court held that the deceased had testamentary capacity at the time she executed the will. The court found that the deceased had knowledge and approval of the contents of the will and that she had no cognitive impairment that would affect her ability to execute the will. The court rejected the son's evidence, finding that it was not sufficient to establish that the deceased lacked testamentary capacity. The court held that the utility of a retrospective diagnosis in the absence of having examined the testatrix was limited and that it did not raise any issues of principle. The court concluded that the will was valid and that the executor was entitled to be admitted to probate.

The court ordered that the executor be admitted to probate of the will, and that letters of administration be issued to the executor. The court also ordered that the son's claim be dismissed with costs. The court held that the son's evidence was not sufficient to establish that the deceased lacked testamentary capacity and that the will was valid. The court found that the executor was entitled to be admitted to probate of the will and that the son's claim should be dismissed with costs.

Orders