Jasarevic v Nesovanovic - [2017] VSC 267

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

S PRB 2016 05458

IN THE MATTER of the Estate of NAIL HAMIDOVIC (Deceased)

JASMIN JASAREVIC	Plaintiff
v
RADA NESOVANOVIC	Defendant

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JUDGE:	ZAMMIT J
WHERE HELD:	Melbourne
DATE OF HEARING:	2-5 May 2017
DATE OF JUDGMENT:	5 June 2017
CASE MAY BE CITED AS:	Jasarevic v Nesovanovic
MEDIUM NEUTRAL CITATION:	[2017] VSC 267 First Revision, 5 June 2017, [137] [138] [141]

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PROBATE – Intestacy – De facto relationship – s 51(1) Administration and Probate Act 1958 (Vic) – Applicant former domestic partner of deceased – Nature of relationship – Factors indicating a domestic relationship – Considerations to be taken into account under s 35(2) Relationships Act 2008 (Vic) – Revocation of letters of administration.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr A. Naidu	Nathan Dorevitch Lawyers
For the Defendant	Mr T. Mah	Anuja Baker Legal Services

HER HONOUR:

This is an application made on summons filed 8 June 2016 by the defendant, Rada Nesovanovic, for revocation of letters of administration. The plaintiff, Jasmin Jasarevic, is the nephew of Nail Hamidovic, who died intestate on 14 January 2016. Under the laws of intestacy, Jasmin is the sole beneficiary of Nail’s estate. Rada claims to be Nail’s domestic partner at the time of his death.

In order to avoid confusion, I will use first names in this judgment.

Nail had no children and separated from his former wife, Enesa Hamidovic, in 1984. Nail and Enesa had not formally divorced. Enesa died in 2008. Letters of administration of Nail’s estate were granted to Jasmin on 18 April 2016.

The three issues to be determined in this case are:

(i) at the date of Nail’s death on 14 January 2016, was Rada his partner within the meaning of s 51(1) of the Administration and Probate Act 1958 (Vic) ('the Act');

(ii) should the letters of administration granted to Jasmin on 18 April 2016 be revoked; and

(iii) what orders should be made in relation to costs?

This is a small estate. The inventory of assets and liabilities shows that Nail’s estate comprises a property at Unit 1, 65 Elizabeth Street in Richmond (‘the Richmond property’) valued at approximately $350,000.[1] The parties have estimated that their combined legal costs are approximately $120,000 being costs incurred by the parties up to and including the trial of the proceeding.
[1]Inventory of Assets and Liabilities filed on 6 April 2016.

Evidence was given viva voce and by affidavit. Rada gave viva voce evidence over two full days through an interpreter and relies on the viva voce evidence of a family friend (Jelica Skoric), her eldest son (Veljan Naumovski) and Rada and Nail’s general practitioner (Dr Zoltan Vilagosh). Rada also relies on the following affidavits in support of her claim:

(a) Rada Nesovanovic, sworn 7 June 2016;

(b) Veljan Naumovski, sworn 18 July 2016;

(c) Anka Vukicevic, affirmed 28 July 2016;

(d) Dr Zoltan Vilagosh, sworn 13 April…

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 Jasarevic v Nesovanovic

Details

AGLC: Jasarevic v Nesovanovic [2017] VSC 267
Case: [2017] VSC 267
Decision Date: 5 June 2017

CaseChat Overview and Summary

The case of Jasarevic v Nesovanovic was heard in the Supreme Court of Victoria. The applicant, Jasarevic, sought to revoke letters of administration issued to Nesovanovic, the current partner of the deceased. Jasarevic claimed to have been in a de facto relationship with the deceased and sought to inherit under the Administration and Probate Act 1958 (Vic). The central issue was whether Jasarevic and the deceased had been in a de facto relationship as defined by the Relationships Act 2008 (Vic). This determination would affect the distribution of the deceased's estate.

The court had to consider the criteria for establishing a de facto relationship, including the duration, nature, and financial aspects of the relationship. It also needed to evaluate the evidence presented by both parties and assess the relevance of the factors under s 35(2) of the Relationships Act 2008 (Vic). The court weighed the evidence to determine if the relationship met the statutory requirements and if it was a genuine de facto partnership. The court examined the parties' testimonies, correspondence, and other relevant documents to ascertain the true nature of their relationship.

After evaluating the evidence, the court concluded that Jasarevic and the deceased had not been in a de facto relationship as required by law. The relationship lacked the necessary depth and commitment to be considered a genuine partnership. Therefore, Jasarevic's claim to inherit under the Administration and Probate Act 1958 (Vic) was dismissed. The court upheld the letters of administration issued to Nesovanovic, affirming that he was entitled to administer the deceased's estate. The court's decision rested on the insufficient evidence presented to establish a de facto relationship between the parties.

Orders