Brady v Mikan

Case [2022] NSWSC 956


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

  1. 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.

  2. Kata died on 20 March 2019. Kata had no children and was not married when she died. Kata’s family members included:

  1. 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).

  2. 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…

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Details
AGLC
Brady v Mikan [2022] NSWSC 956
Case
[2022] NSWSC 956
Decision Date

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

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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