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
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
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.
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- AGLC
- Gerovich v Gerovich [2021] WASC 77
- Case
- [2021] WASC 77
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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