In the Estate of Misaljevic

[2025] ACTSC 402

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

In the Estate of Misaljevic

Citation: 

[2025] ACTSC 402

Hearing Date: 

28 August 2025

Decision Date: 

5 September 2025

Before:

Muller AJ

Decision: 

(1)    Letters of administration of the estate of Danijel Misaljevic (the deceased person) are granted to Jodie Bianca Lear

(2)    The deceased person died on 9 June 2022

(3)    The estimated gross value of the deceased person’s estate in the ACT is $66,144.98

Catchwords: 

SUCCESSION – WILLS, PROBATE & ADMINISTRATION – Application for letters of administration – deceased died intestate – meaning of domestic partner – s 169 of Legislation Act – ex parte application – filing of notice of intention to respond demonstrative of service – were applicant and deceased living together on genuine domestic basis – domestic partnership established – letters of administration granted to applicant

Legislation Cited:

Administration and Probate Act1929 (ACT) s 44

Civil Unions Act 2012 (ACT) s 6

Domestic Relationships Act 1994 (ACT) s 37B

Legislation Act 2001 (ACT), ss 169, 132

Wills Act 1968 (ACT) s 11A

Cases Cited:

Crellin v Robertson [2004] ACTSC 92

In the Estate of Rodopoulos [2019] ACTSC 56

In the Estate of the late David Eric Platt [2020] ACTSC 316

Lynam v Director General of Social Security [1983] FCA 274; 52 ALR 128

Parties: 

Jodie Bianca Lear ( Applicant)

Representation: 

Counsel

A Freer ( Applicant)

Solicitors

KJB Law ( Plaintiff)

File Number:

PRO 1122 of 2023

MULLER AJ:

Introduction

1․Danijel Misaljevic died unexpectedly on 9 June 2022, aged 37 years. He left no will.  Danijel's parents separated when he was aged 7 years. His father remained in Bosnia and he had no further contact with him. Danijel travelled to England with his mother, subsequently migrating to Australia where he lived in the Australian Capital Territory for approximately 7 years prior to his death. He is survived by his mother, who continues to reside in the United Kingdom.

2․Jodie Lear contends that she was Danijel’s partner at the date of his death and she seeks a grant of letters of administration in relation to Danijel’s estate. The question for the court is whether it is appropriate to grant letters of administration to her.

The Application

3․The hearing of the application ultimately proceeded ex parte, although a notice of intention to respond was lodged by Danijel's mother on 22 May 2025. The proceeding had a long history prior to that date with the application having been initially lodged in October 2023. In February 2024, orders were made by this court requiring notice of the application to be given to each person who would be entitled to distribution of the estate if the deceased had not left a domestic partner. In effect, that order required notice to be given to Danijel's mother, the whereabouts of his father being unknown. The filing of the notice of intention to respond was of itself demonstrative of the fact that Danijel’s mother was on notice of the application. Upon the filing of the notice the following orders were made:

2.Direct the respondents to file any affidavit evidence on which they intend to rely, on or before 21 July 2025.

3.     Direct the applicant to file any affidavit evidence in reply by 11 August 2025.

4.     Grant the respondents leave to appear via AVL on 28 August 2025.

4․It is noted that despite the making of order 2 as set out above, Danijel’s mother did not file any affidavit evidence, nor did she appear at the hearing of this matter before me on 28 August 2025.

5․The affidavit of Mr Andrew Grant Freer affirmed on 23 April 2025 sets out the steps taken to serve Danijel’s mother with relevant documents by email on 28 March 2025. Whilst no response was received to this email at the time of the affirming of the affidavit, the notice of intention to respond was filed with the Court on 22 May 2025.

6․As McWilliam AsJ (as her Honour then was) observed In the Estate of the late David Eric Platt [2020] ACTSC 316 at [4]:

In applications of this kind, made without the benefit of an active contradictor, it is important that notice of the proceedings be given (so far as may be practicable) to all persons who have, or may have, an interest in the proceedings.  This is to give effect to the principle that where a person who is interested in the outcome of probate proceedings has been given notice of those proceedings and a reasonable opportunity to intervene in them, that person may be bound by the outcome even if not formally made a party to those proceedings: see Osborne v Smith (1960) 105 CLR 153 at 158-159.

7․With reference to the actions detailed above I am satisfied that the potential beneficiaries or interested persons in this application have been properly notified of the existence of the proceedings and of the hearing date.

The absence of a will

8․“Intestate” is defined in Section 44 of the Administration and Probate Act1929 (ACT) (Probate Act) as:

intestate means a person who dies on or after 1 July 1967 and either does not leave a will or leaves a will but does not dispose effectively, by the will, of the whole or part of his or her real or personal property.

9․There is no evidence suggesting that Danijel left a will. Ms Lear attested to having no knowledge of the existence of a document claiming to contain Danijel’s testamentary intentions. She also took steps to find out whether there was any document fitting that category by searching his personal papers, causing enquiries to be made with his bank, and of the ACT Public Trustee and Guardian, and by publication of a missing wills notice in the ACT Law Society, “Hearsay” publication.

10․At this point, I note an email sent from Mr Freer to Danijel’s mother, exhibited to the affidavit of Andrew Grant Freer affirmed on 23 April 2025, which makes reference to a wish expressed by Danijel for funds to be paid to Danijel’s sister.

11․The circumstances and origin of any statement to this effect are not in evidence before me. Further, the evidence does not rise to the level of a document containing testamentary intention as per s 11A of the Wills Act 1968 (ACT). Accordingly, I have formed the view that it is not relevant to the decision on the application before me. See: In the Estate of Rodopoulos [2019] ACTSC 56 at [21].

12․I am satisfied that Danijel was an intestate person within the meaning of s 44. In a case of intestacy s 49 of the Act provides that the estate is to be distributed in accordance with sch 6:

item	circumstances	How intestate estate of intestate is to be distributed
1	if the intestate is not survived by issue	The partner is entitled to the whole of the intestate estate.
2	if the intestate is survived by issue	1 If the value of the intestate estate does not exceed $200 000, the partner is entitled to the whole of the intestate estate. 2 If the value of the intestate estate exceeds $200 000, the partner is entitled to be paid out of the intestate estate— (a) $200 000; and (b) interest on that sum, calculated at the rate of 8% per annum from the date of the death of the intestate to the date that sum is paid or appropriated to the partner (inclusive); and (c) an additional sum equal to— (i) if 1 child or the issue of 1 child of the intestate survives the intestate but no other issue of the intestate survives the intestate—1/2 of the value of the balance of the intestate estate; or (ii) in any other case—1/3 of the value of the balance of the intestate estate. 3 The issue of the intestate are entitled to the balance (if any) of the intestate estate after payment to the partner of the sum or sums to which the partner is entitled under this item.

13․The effect of the rules of intestacy in this case is that if Danijel is survived by a person meeting the definition of a partner that person is entitled to the whole of his estate. In the absence of a partner, and in circumstances where he had no children, Danijel's mother would be entitled to the whole of the intestate estate.

Domestic Partner

14․Partner is defined in s 44 of the Probate Act as:

partner—an intestate’s partner is either of the following:

(a) the spouse, civil union partner or civil partner of the intestate when the intestate died;

(b)the eligible partner of the intestate.

15․Civil partner and civil union partner are terms defined in the Legislation Act 2001 (ACT) (Legislation Act):

civil partner—a person who is in a civil partnership with someone else is the civil partner of the other person.

civil union partner—a person who is in a civil union with someone else is the civil union partner of the other person.

16․A civil union under the Legislation Act means:

6        Civil unions—general 

(1) A civil union is a legally recognised relationship entered into under this Act.

(2) A civil union is different to a marriage but is to be treated for all purposes under territory law in the same way as a marriage.

Note 1 Marriage is defined in the Marriage Act 1961 (Cwlth), s 5 to mean the union of a man and a woman to the exclusion of all others, voluntarily entered into for life.

Note 2 Territory law includes the common law (see Legislation Act, dict pt 1, def law).

17․There is no evidence to suggest that Danijel had a civil union partner at any material time.

18․A civil partnership under the Legislation Act means:

37BCivil partnerships—general

(1)A civil partnership is a legally recognised relationship entered into under this Act.

(2)A civil partnership ends only as provided by division 4A.4.

Note Div 4A.4 provides for ending civil partnerships by death, marriage, notice by parties or court order.

(3) The 2 parties to a civil partnership are taken, for all purposes under territory law, to be in a domestic partnership.

Note For the meaning of domestic partnership, see the Legislation Act, s 169. It includes a civil union and a civil partnership.

19․There is no evidence to suggest that Danijel had entered into a civil partnership under the Domestic Relationships Act 1994 (ACT) at any material time. As Ms Lear was neither a spouse, civil partner or civil union partner of Danijel at the time of his death, it is necessary for her to establish that she was an eligible partner within the meaning of s 44 of the Probate Act if she is to qualify as a partner entitled to the distribution of the whole of his estate pursuant to Schedule 6 of that Act.

20․An eligible partner is defined in s 44 as:

eligible partner, of an intestate, means someone, other than the spouse, civil union partner or civil partner of the intestate, who—

(a) was the intestate’s domestic partner when the intestate died; and

(b) either—

(i)had been the intestate’s domestic partner continuously for 2 or more years when the intestate died; or

(ii) is the parent of the intestate’s child, if the child was under 18 years old when the intestate died.

Note For the meaning of domestic partner, see Legislation Act, s 169.

21․Somewhat circuitously, domestic partner and domestic partnership is then defined in s 169 of the Legislation Act as:

169      References to domestic partner and domestic partnership

(1) In an Act or statutory instrument, a reference to a person’s domestic partner is a reference to someone who lives with the person in a domestic partnership, and includes a reference to a spouse, civil union partner or civil partner of the person.

Note The Macquarie dictionary, (1997) defines spouse as ‘either member of a married pair in relation to the other; one’s husband or wife’.

(2) In an Act or statutory instrument, a domestic partnership is the relationship between 2 people, whether of a different or the same sex, living together as a couple on a genuine domestic basis.

Example—indicators to decide whether 2 people are in a domestic partnership

1     the length of their relationship

2     whether they are living together

3     if they are living together—how long and under what circumstances they have lived together

4     whether there is a sexual relationship between them

5 their degree of financial dependence or interdependence, and any arrangements for financial support, between or by them

6 the ownership, use and acquisition of their property, including any property that they own individually

7     their degree of mutual commitment to a shared life

8     whether they mutually care for and support children

9     the performance of household duties

10      the reputation, and public aspects, of the relationship between them

(3)In an Act or statutory instrument, a reference to a domestic partnership includes a reference to a marriage, a civil union and a civil partnership.

22․A domestic partnership is a relationship distinct from a domestic relationship within the meaning of the Domestic Relationships Act 1994 (ACT). Whilst there is clearly some overlap between the terms as defined, a domestic partnership is premised on persons living together in a marriage-like arrangement, whereas a domestic relationship allows a much wider category of relationships existing within a domestic context.

23․In respect of a domestic relationship Crispin J observed in Crellin v Robertson [2004] ACTSC 92 at [24]:

It should be noted that the De Facto Relationships Act1984 (NSW) not only provided for a much narrower range of issues to be taken into account but also applied to a more narrow range of relationships than those embraced by the ACT enactment. The term “domestic relationship” is defined by s 3(1) of the Act to mean “a personal relationship between 2 adults in which one provides personal or financial commitment and support of a domestic nature for the material benefit of the other and includes a domestic partnership but does not include a legal marriage”. Subsection (2) makes it clear that, for the purpose of this definition, a personal relationship may exist between persons who are not members of the same household. Hence, it may be possible for people to be involved in two or more concurrent domestic relationships. To take an obvious example, a person may have one relationship with a domestic partner, another with an elderly parent whom he or she supports in a nursing home and a third with another parent who lives in a granny flat attached to his or her residence. Yet all might fall within the broad ambit of this definition.

24․A narrower construct is established by the definition of a domestic partnership contained in the Legislation Act. The question to be determined is whether Danijel and Ms Lear were living together as a couple on a genuine domestic basis. Section 169 of the Legislation Act includes examples of indicators to assist in determining whether a domestic partnership exists.

25․In relation to the use of examples, s 132 of the Legislation Act states:

132Examples

(1) An example in an Act or statutory instrument—

(a) is not exhaustive; and

(b) may extend, but does not limit, the meaning of the Act or instrument, or the particular provision to which it relates.

(2) An example may take either of the following forms:

(a) a statement at the end of the provision it illustrates (or at the end of a provision containing the provision it illustrates);

(b) a statement forming part of the text of a provision that illustrates the operation of the provision, whether or not the words ‘for example’ are used.

(3) Subsection (2) does not limit the form that an example may take.

(4) This section is a determinative provision.

Note See s 5 for the meaning of determinative provisions, and s 6 for their displacement.

26․In Lynam v Director General of Social Security [1983] FCA 274; 52 ALR 128 Fitzgerald, J, observed at 200:

Each element of a relationship draws its colour and its significance from the other elements, some of which may point in one direction and some in the other. What must be looked at is the composite picture. Any attempt to isolate individual factors and to attribute to them relative degrees of materiality or importance involves a denial of common experience and will almost inevitably be productive of error. The endless scope for differences in human attitudes and activities means that there will be an almost infinite variety of combinations of circumstances which may fall for consideration. In any particular case, it will be a question of fact and degree, a jury question, whether a relationship between two unrelated persons of the opposite sex meets the statutory test.

27․Further, I note Petersen v Gregory; Estate Glen Alfred Petersen [2007] NSWSC 8, where at [11] Barrett J observed:

The central concept is one of personal commitment that is mutually acknowledged and of an emotional kind transcending the mere fact of the shared residential setting. It is that which causes two persons residing under the same roof to be living ‘together as a couple’.

The evidence

28․In support of the application affidavits of Ms Lear affirmed on 25 October 2023 and 22 February 2024 were read. The applicant also relied on an affidavit of her solicitor, Andrew Freer, affirmed on 23 April 2025. I also had the benefit of some short oral evidence from Ms Lear, who I found to be open and forthright.

29․As to her relationship with Danijel the evidence established the following matters:

(a)The relationship had been continuous for approximately five and half years prior to the date of Danijel's death.

(b)The couple had lived together since some time in 2018 and then jointly rented a series of residential properties, commencing with a lease entered into in January 2019.

(c)They had been sexually intimate, although the period of that intimacy was somewhat unclear.

(d)They both suffered from mental health issues, and a significant part of the relationship was the mutual support they provided in managing mental health issues from time to time. In that context, they each had periods out of the workforce and at those times there was financial support provided for the person who was not working.

(e)In a general sense, the couple maintained their own bank accounts, but they also shared expenses extensively including rent, groceries and the costs of holidays.

(f)Household chores were shared throughout their cohabitation.

(g)The couple shared responsibility for a young woman who had become homeless and who lived with them from time to time. They described her as their “foster kid”.

(h)Their friendship group regarded them as a couple.

30․The arrangement is perhaps best described in the words of Ms Lear, who in response to a question as to whether the relationship was just one of housemates, observed:

No, I - I think housemates have separate lives, is that - like, you know, so no. We shared a life. He would come home and sit with me and snuggle with me. We shared food together, we shared emotions, we shared connections, we shared family. You know, if I was invited somewhere, he would always come with me. It was definitely not just housemates. Absolutely not. No, not at all.

Conclusion

31․Viewed as a whole I am satisfied that the relationship amounted to a domestic partnership in the sense that the couple lived together on a genuine domestic basis. As a consequence, Ms Lear meets the definition of a partner in Section 44 of the Administration and Probate Act and is therefore entitled to the whole of Danijel’s estate.

Orders

32․I make the following orders:

(1)Letters of administration of the estate of Danijel Misaljevic (the deceased person) are granted to Jodie Bianca Lear.

(2)The deceased person died on 9 June 2022.

(3)The estimated gross value of the deceased person’s estate in the ACT is $66,144.98.

I certify that the preceding thirty-two [32] numbered paragraphs are a true copy of the Reasons for  Judgment of his Honour Acting Justice Muller.

Associate:

Date: 5 September 2025