Brown as executor of the estate of the late Petar Vezmar (aka Peter Vezmar) (No 2)

In this matter, the deceased, Petar Vezmar, passed away in 2012 leaving a will that was to be administered in both Australia and Serbia. The executor, Brown, sought judicial advice from the court regarding the interpretation and operation of the will. The primary dispute was whether the will's provisions for the disposition of real estate in Serbia, which was devised on trust, could be enforced in Australia and if the substitutional gifts would take effect as the Serbian law did not recognise trusts, leading to the absolute vesting of the property in the devisee.

The court was required to determine whether the will's trusts were valid under Australian law and, if not, whether the substitutional gifts were effective. Additionally, the court needed to consider whether it was appropriate to provide judicial advice on the matter, given that some beneficiaries resided in Serbia and might not wish to be heard. The court had to balance the applicability of Australian law with the recognition of foreign law and the implications for the beneficiaries under both jurisdictions.

The court found that the trusts in the will were not valid under Serbian law, which did not recognise the concept of trusts, and thus the property was absolutely vested in the devisee. Consequently, the substitutional gifts did not take effect as the primary gift did. The court proceeded to provide judicial advice on the matter, acknowledging the complexities involved in interpreting the will across two jurisdictions. The court's advice was that the substitutional gifts were not applicable as the primary trust failed to operate due to the foreign law's incompatibility with trusts. The court also noted the potential implications for the beneficiaries and the necessity of considering their rights under both Australian and Serbian laws.

The final orders included the court's judicial advice that the substitutional gifts in the will were not effective, and the trustees were not required to implement them. The court advised that the real estate in Serbia was absolutely vested in the devisee, and the beneficiaries should be informed of this outcome. The court also recommended that the executor and trustees take appropriate steps to ensure that all beneficiaries, particularly those residing in Serbia, were adequately informed and that their rights were protected under the circumstances.