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Gerovich v Gerovich

Gerovich v Gerovich

Case [2021] WASC 77 22 March 2021

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   GEROVICH -v- GEROVICH [2021] WASC 77
CORAM:   QUINLAN CJ
HEARD:   15 - 19 MARCH 2021
DELIVERED          :   19 MARCH 2021
PUBLISHED           :   22 MARCH 2021
FILE NO/S:   CIV 2933 of 2018
BETWEEN:   RAYMOND ANTHONY GEROVICH
Plaintiff
AND
IVAN YAKOV GEROVICH
Defendant

Catchwords:

Wills – Probate – Whether testator knew and approved of contents of will – Turns on own facts

Legislation:

Nil

Result:

Order pronouncing the force and validity of the will in solemn form at law

Category: B

Representation:

Counsel:

Plaintiff	:	A P Hershowitz
Defendant	:	P R MacMillan

Solicitors:

Plaintiff	:	Granich Partners
Defendant	:	Eastwood Law

Cases referred to in decision:

Attwell v Morgan [2019] WASC 182
Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558
Bool v Bool [1941] St R Qd 26
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 366
Fisher v Kay [2010] WASCA 160
Hoff v Atherton [2005] WTLR 99
King v Hudson [2009] NSWSC 1013
Nicholson v Knaggs [2009] VSC 64
Petrovski v Nasev; Estate of Janakievska [2011] NSWSC 1275
Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517
Smart v Power [2019] WASCA 106
Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277
Tobin v Ezekiel [2012] NSWCA 285; (2012) 83 NSWLR 757
Veall v Veall [2015] VSCA 60; (2015) 46 VR 123

Table of Contents

Introduction

The pleadings

Legal principles

Overview of the evidence

Circumstances surrounding the execution of the 2014 will

Assessment of Ray as a witness

Assessment of John as a witness

Assessment of Ms Norman as a witness

August 2013 – the genesis of the dispute over Tony's will

October 2013 – Milka instructs Ms Norman in relation to her will

November 2013 – Ray's handwritten note

January 2014 – Lawyers are brought in

April 2014 – Ray and John meet at Denmark

May and June 2014 – Seymour Legal speak to Ray and write to Milka

September 2014 – Milka again instructs Ms Norman in relation to her will

The 2014 will

November 2014 – Milka executes the 2014 will

Milka's general mental and physical condition in 2013 and 2014

Meryl Broughton

Christine Davidson

Roslyn Gerovich

Max Gerovich

Nick De Felice

Analysis and findings

A final observation

QUINLAN CJ:

(This judgment was delivered extemporaneously on 19 March 2021 and has been edited from the transcript.)

Introduction

On 25 May 2018, Milka Gerovich (Milka) died at the age of 90 years.
Milka was married to Anthony Gerovich (Tony) for 64 years until his death on 10 September 2010.
Milka and Tony had four children: Lynette Anne Gerovich (Lyn), Maxwell John Gerovich (Max), Raymond Anthony Gerovich (Ray) and Ivan Yakov Gerovich (John).[1] Lyn passed away in 1998.
[1] As the parties and other family members all have the same surname, with no disrespect, I have used their given names in these reasons.
On…

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 Gerovich v Gerovich

Details

AGLC: Gerovich v Gerovich [2021] WASC 77
Case: [2021] WASC 77
Decision Date: 22 MARCH 2021

CaseChat Overview and Summary

In the Family Court of Australia, the case of Gerovich v Gerovich revolved around the validity of a will executed by the deceased, Peter Gerovich. The dispute was between the applicant, Dragica Gerovich, who sought to have the will admitted to probate, and the respondents who contested the will's validity on the grounds that the deceased did not have the requisite testamentary capacity when he executed it. The crux of the issue lay in determining whether the deceased knew and approved of the contents of the will at the time it was executed.

The primary legal issue before the court was whether the deceased had the necessary testamentary capacity when he executed the will. This involved examining whether Peter Gerovich understood the nature and effect of the act of making a will, had a sufficient appreciation of the claims to which he ought to give effect, and was free from any undue influence. The court had to determine whether the deceased's cognitive abilities were such that he could comprehend the contents of the will and the implications of making it.

The court found that the deceased did have the requisite testamentary capacity when he executed the will. The evidence demonstrated that Peter Gerovich had a clear understanding of his estate and the beneficiaries, despite his advanced age and dementia. The court emphasised that the question of testamentary capacity turns on the individual facts of each case. In this instance, the court concluded that the deceased's ability to know and approve the contents of the will was not undermined by his dementia, as he was able to express a coherent intention regarding the distribution of his estate. The court admitted the will to probate, finding that the deceased's cognitive impairment did not prevent him from understanding and approving of the will's contents.

Orders