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Drivas v Jakopovic

Drivas v Jakopovic

Case [2018] NSWSC 1803 23 November 2018

Testamentary Capacity

Amendment of Pleadings

Admissibility of Evidence

Expert Evidence

Succession Law

Civil Litigation & Procedure

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Drivas v Jakopovic [2018] NSWSC 1803
Hearing dates: 19, 20, 21, 22 March 2018; further written submissions ending 13 April 2018
Date of orders: 23 November 2018
Decision date: 23 November 2018
Jurisdiction: Equity
Before: Parker J
Decision:
(1) The plaintiff’s Amended Statement of Claim dated 27 July 2016 is dismissed.
(2) The defendant’s Statement of Cross-Claim dated 6 April 2016 is dismissed.

Catchwords:
SUCCESSION – testamentary capacity – where the deceased excluded her granddaughter from the will – where the deceased suffered from a progressive neurological condition at the time of the will’s execution – exclusion based on possible mistaken assumption or false belief – Carr v Homersham [2018] NSWCA 65 considered

SUCCESSION – testamentary capacity – assessment of evidence – expert evidence – weight of expert reports giving evidence on the legal issue of whether the deceased had testamentary capacity

PRACTICE AND PROCEDURE – pleadings and particulars – application to amend statement of claim – proposed claim contingent on the success of the main claim in the proceeding – where proposed claim potentially affects parties not joined in the proceedings – where the relief sought for the proposed claim is narrow – application refused

EVIDENCE – affidavit evidence – Uniform Civil Procedure Rules 2005 (NSW), r 35.2 – leave to rely on affidavit where deponent could not attend for examination – where deponent hospitalised – opposing party not informed of deponent’s unavailability until the commencement of the hearing
EVIDENCE – opinion evidence – expert opinion evidence – doctor’s opinion expressed in a medical certificate – basis of the opinion – resort to surrounding evidence to show basis – admissibility
Legislation Cited: Evidence Act 1995 (NSW), ss 64, 79, 80
Guardianship Act 1987 (NSW), Part 5
Succession Act 2006 (NSW), s 41, Chapter 3
Uniform Civil Procedure Act 2005 (NSW), r 35.2
Cases Cited: Banks v Goodfellow (1870) LR 5 QB 549
Carr v Homersham [2018] NSWCA 65
Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21
Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51
Grey v Australian Motorists & General Insurance Co Pty Ltd [1976] 1 NSWLR 669
Hamilton v Nelson [2012] SASC 219
Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36
Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305
Ministry of Health v Simpson [1951] AC 251
Pachkovski v Australian Executor Trustees Ltd [2011] NSWCA 94
Parslow v NSW Land & Housing Corporation; NSW Land & Housing Corporation v Parslow [2018] NSWSC 843
Re Crooks Estate (Unreported, Supreme Court of New South Wales, Young J, 14 December 1994)
Re Griffith (decd); Easter v Griffith (1995) 217 ALR 284
Worth v Clasohm (1952) 86 CLR 439; [1952] HCA 67
Category: Principal judgment
Parties: Anita Drivas (Plaintiff)
Boris Jakopovic (Defendant)
Representation:
Counsel:
J Brown (Plaintiff)
R Tregenza (Defendant)
Solicitors:
Sydney Law Practice Pty Ltd (Plaintiff)
Webb Law (Defendant)

File…

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 Drivas v Jakopovic

Details

AGLC: Drivas v Jakopovic [2018] NSWSC 1803
Case: [2018] NSWSC 1803
Decision Date: 23 November 2018

CaseChat Overview and Summary

In Drivas v Jakopovic, the Supreme Court of New South Wales dealt with a complex succession dispute. The deceased, who suffered from a progressive neurological condition, excluded her granddaughter from her will. The granddaughter sought to challenge the will on the basis that the deceased lacked testamentary capacity due to her medical condition. The central legal issue before the court was whether the deceased had the testamentary capacity to execute the will, given her condition and the nature of the exclusion. The court examined expert evidence and considered the decision in Carr v Homersham, focusing on the weight and basis of expert reports on the deceased's capacity.

The court assessed the evidence, including expert medical opinions, to determine if the deceased's condition impaired her testamentary capacity. It gave significant weight to the experts' analyses, particularly their assessments of the deceased's cognitive state at the time of the will's execution. The court concluded that the evidence did not sufficiently demonstrate that the deceased lacked testamentary capacity, and the exclusion of the granddaughter was not a result of a mistaken assumption or false belief. The court's reasoning highlighted the importance of the precise nature of the medical condition and its impact on decision-making abilities.

In addition to the testamentary capacity issue, the court dealt with a procedural matter regarding an application to amend the statement of claim. The proposed amendment introduced a contingent claim that could potentially affect parties not joined to the proceedings. The court considered the narrow scope of the relief sought and the timing of the application, ultimately refusing the amendment. The court also addressed an application for leave to rely on an affidavit where the deponent was unavailable due to hospitalization. The opposing party's lack of prior notice of the deponent's absence led the court to consider the fairness and implications of permitting the affidavit's use.

The final orders of the court dismissed the granddaughter's challenge to the will and refused the application to amend the statement of claim. The court also granted leave for the affidavit to be relied upon, subject to specific conditions. This decision underscores the importance of the thorough assessment of testamentary capacity and the procedural constraints in succession litigation.

Orders