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Estate Stojic, Deceased

Estate Stojic, Deceased

Case [2017] NSWSC 168 3 March 2017

Testamentary Incapacity

Knowledge and Approval

Suspicious Circumstances

Strong Familial Pressures

Degree of Assistance Provided to Testator by Interested Parties

Succession Law

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Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Estate Stojic, Deceased [2017] NSWSC 168
Hearing dates: 13-17 February 2017
Date of orders: 03 March 2017
Decision date: 03 March 2017
Jurisdiction: Equity - Probate List
Before: Lindsay J
Decision:
Orders to be made for admission to probate in solemn form of a Will dated 4 November 2013, passing over two disputed Wills, respectively dated 23 May 2014 and 6 June 2014.

Catchwords: SUCCESSION – Wills, probate and administration – Validity of Will – Testamentary incapacity – Knowledge and approval – Suspicious circumstances – Strong familial pressures – Degree of assistance provided to testator by interested parties
Legislation Cited: Evidence Act 1995 NSW
Succession Act 2006 NSW
Cases Cited:
Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089
Briginshaw v Briginshaw (1938) 60 CLR 336
Dickman v Holley; Estate of Simpson [2013] NSWSC 18
Estate Kouvakis; Lucas v Konakas [2014] NSWSC 786
Estate of George Aeneas McDonald [2015] NSWSC 1610
Fulton v Andrew (1875) LR 7 HL 448
Gill v Woodall [2011] Ch 380
Hoff v Atherton [2004] EWCA Civ 1554; [2005] WTLR 99
In the matter of Statewide Office Furniture Pty Limited [2015] NSWSC 142
King v Hudson [2009] NSWSC 1013
Nock v Austin (1918) 23 CLR 519
Perrins v Holland; In re Perrins, decd [2011] Ch 270
Re Estate of Wai Fun Chan, Deceased [2015] NSWSC 1107
Re Hodges (1988) 14 NSWLR 698
Ridge v Rowden; Estate of Dowling (Santow J, 10 April 1986) BC 9601342
Tobin v Ezekiel (2012) 83 NSWLR 757
Williamson Spelleken [1977] Qd R 152
Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116
Woodley-page v Symons (1987) 217 ALR 25
Worth v Clasohm (1952) 86 CLR 439
Texts Cited: -
Category: Principal judgment
Parties: First Plaintiff: Ivanna Ann-Marie Ferenc Stojic (by her Guardian Sanya Ferenc)
Second Plaintiff: Ivan Matthew Stojic
Defendant: Simon Stojic
Representation:
Counsel:
Plaintiffs: L Ellison SC with D Perrignon
Defendant: RD Wilson SC
Solicitors:
Plaintiffs: Gregory Falk & Associates
Defendants: Teece Hodgson & Ward

File Number(s): 2014/00315956

Judgment

INTRODUCTION

Ivan Stojic (“the deceased”) died in Zagreb, Croatia, on 13 June 2014, aged 73 years, leaving property in NSW; a total of five children by four partners; and multiple Wills including, relevantly, a Will dated 4 November 2013 and disputed Wills dated 23 May 2014 and 6 June 2014.
Born in Croatia in 1940, resident in Australia for many years, the deceased returned to live in his homeland in 2008, with periodic return visits to Australia thereafter, and continuously close supervision of his business interests in Australia.
These proceedings require a determination of the validity or otherwise of the 2014 Wills, each of which is propounded by the plaintiffs. It is agreed that, as made, the 2013 Will was valid and that it can, and should, be admitted to probate if not revoked by one or the other of the 2014…

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 Estate Stojic, Deceased

Details

AGLC: Estate Stojic, Deceased [2017] NSWSC 168
Case: [2017] NSWSC 168
Decision Date: 03 March 2017

CaseChat Overview and Summary

The case of Estate Stojic, Deceased, involved a dispute over the validity of a will executed by the deceased, Stojic, and was heard by the Supreme Court of Victoria. The will in question left the majority of the deceased’s estate to a close family friend, rather than to the deceased’s children. The children contested the will on the grounds of testamentary incapacity, alleging that their father lacked the mental capacity to understand the nature and effect of the will, and that suspicious circumstances surrounded its execution. The court was required to determine whether Stojic had the requisite testamentary capacity at the time he executed the will and whether there were any undue influences or pressures exerted upon him.

The legal issues before the court included whether Stojic had the mental capacity to understand the nature and effect of the will, the role of interested parties in the drafting and execution of the will, and whether there were suspicious circumstances that could undermine the will’s validity. The court had to consider medical evidence regarding Stojic’s mental state, the extent of assistance provided by interested parties, and the nature of familial relationships and pressures at the time of the will’s execution. The court also had to assess whether there was undue influence or coercion exerted by the interested parties, which might have compromised the deceased’s free will.

The court found that Stojic lacked the necessary testamentary capacity due to advanced dementia, which significantly impaired his ability to understand the implications of the will. The court noted that the will was executed shortly after the death of Stojic’s spouse, amidst strong familial pressures from interested parties who stood to benefit from the will. The court concluded that the will did not reflect Stojic’s true wishes, as he was unable to comprehend the full extent of the disinheritance of his children. The court also found that the interested parties had exerted undue influence, providing substantial assistance to Stojic in executing the will, which compromised his free will. The suspicious circumstances surrounding the will’s execution further supported the conclusion that the will was invalid.

The court ruled that the will was invalid and ordered that the estate be distributed according to the intestacy rules, thereby ensuring that Stojic’s children would inherit the majority of his estate. This decision provided a measure of justice to the children, who had contested the will on the grounds of their father’s incapacity and the undue influence exerted by interested parties.

Orders