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Draskovic v Bogicevic

Draskovic v Bogicevic

Case [2007] VSC 36 1 March 2007

Testator’s Family Maintenance

Administration and Probate Act 1958 s.91

Succession Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION

No. 8873 of 2005

PART IV OF THE Administration and Probate Act 1958 (Victoria)

IN THE MATTER of the Will and Estate of Janko Polovina (deceased)

BETWEEN

MARA DRASKOVIC	Plaintiff
v
BRANKO BOGICEVIC (who is sued as Executor of the estate of Janko Polovina (deceased))	Defendant

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JUDGE:	KAYE J
WHERE HELD:	Melbourne
DATE OF HEARING:	23 and 26 February 2007
DATE OF JUDGMENT:	1 March 2007
CASE MAY BE CITED AS:	Draskovic v Bogicevic
MEDIUM NEUTRAL CITATION:	[2007] VSC 36

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TESTATOR’S FAMILY MAINTENANCE – Claim by deceased’s former wife – Short marriage – Divorce 14 years before testator’s death – Testator paying maintenance to date of death – Whether testator had responsibility to provide for plaintiff’s proper maintenance and support – Administration and Probate Act 1958 s.91.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S.P. Newton	Kennedy Guy
For the Defendant	Mr G.K. Moore	Baird and McGregor

HIS HONOUR:

The plaintiff is the former wife of Janko Polovina (“the deceased”), who died on 28 April 2005. At the time of his death the deceased had an estate which, for probate purposes, was valued at $590,777. By his will dated 15 March 1996, the deceased appointed the first defendant, his uncle, as his executor, and left his entire estate to the first defendant. The plaintiff claims provision out of the estate of the deceased pursuant to Part 4 of the Administration and Probate Act 1958 (“the Act”).

The deceased was born on 26 June 1944 in a German concentration camp in Hungary. His parents were of Serbian origin. After the Second World War the deceased and his parents were reunited in Serbia. In 1968 the defendant and his wife visited the former Yugoslavia. They encouraged the deceased to join them in Australia. As a result the deceased emigrated to Australia in 1969. He was then single. For the next three and a half years he lived with the defendant and his wife at their home in Ballarat. In the early 1970s the deceased moved to Sunshine. For a time he was employed with Dunlop, and then subsequently he worked as a machine operator with Olex Australia Pty Ltd. He worked with that company for about 30 years until his death. In 1981 he purchased land in Sunshine, and five years later built his house on that land.

After his migration to Australia the deceased returned to the former Yugoslavia on a number of occasions to visit his brother and his family. On one such visit, in April 1989, he met the plaintiff. The plaintiff had been born in Serbia in February 1957. She was previously married, but divorced, and had a daughter who was then aged ten years. The plaintiff and the deceased married in Serbia in January 1990. The plaintiff was unable to obtain the necessary documentation to accompany her husband to Australia. Ultimately she came to Australia in December 1990, but her…

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 Draskovic v Bogicevic

Details

AGLC: Draskovic v Bogicevic [2007] VSC 36
Case: [2007] VSC 36
Decision Date: 1 March 2007

CaseChat Overview and Summary

Draskovic v Bogicevic involved a claim by the former wife of a deceased individual for ongoing maintenance. The deceased and the plaintiff were married for a brief period and divorced fourteen years prior to the testator's death. Despite the divorce, the deceased had continued to provide financial support to the plaintiff until his death. The central legal issue before the court was whether the deceased had a responsibility under the Administration and Probate Act 1958 to ensure the plaintiff's proper maintenance and support. This responsibility is codified in section 91 of the Act, which permits the court to order that reasonable provision be made for the maintenance and support of the testator's former spouse or de facto partner, if the court is satisfied that such provision should be made.

The court considered the duration of the marriage, the period over which maintenance was paid, and the circumstances surrounding the divorce and subsequent relationship between the parties. It assessed whether the testator's financial support, which continued until his death, constituted a sufficient provision for the plaintiff's maintenance and support. In reaching its decision, the court also took into account the statutory criteria outlined in section 91, which includes the financial resources of the deceased estate and the needs of the plaintiff. After careful deliberation, the court concluded that the testator's ongoing payments did not absolve him of the responsibility to make reasonable provision for the plaintiff's future maintenance and support under the Act.

The outcome was that the court found in favour of the plaintiff, ordering that reasonable provision be made for her maintenance and support from the deceased's estate. This decision underscored the importance of the statutory obligation to provide for a former spouse's needs, even in cases where the marriage was short-lived and the divorce was finalised many years prior to the testator's death. The final orders included a directive for the estate to provide for the plaintiff's ongoing maintenance, reflecting the court's interpretation of the statutory requirements and the specific circumstances of the case.

Orders