Re Josipovic
[2021] VSC 43
•11 February 2021
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TRUSTS, EQUITY AND PROBATE LIST
S PRB 2019 12906
IN THE MATTER of the Will of MARIJA JOSIPOVIC (also known as MARIA JOSIPOVIC), deceased
APPLICATION BY:
| STATE TRUSTEES LIMITED ACN 064 593 148 | Plaintiff |
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JUDGE: | McMillan J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | On the papers |
DATE OF JUDGMENT: | 11 February 2021 |
CASE MAY BE CITED AS: | Re Josipovic |
MEDIUM NEUTRAL CITATION: | [2021] VSC 43 |
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WILLS AND ESTATES – Informal wills – Signed, handwritten document found in safe custody packet at bank with directions for location and distribution of cash buried in back garden – Whether deceased intended the document to act as a codicil to her will – Whether the deceased had testamentary capacity – Application granted – Wills Act 1997 (Vic) s 9.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr T Mah | State Trustees |
HER HONOUR:
Introduction
Marija Josipovic (‘the deceased’) died on 3 October 2015, leaving a handwritten will dated 11 September 2002 (‘the will’).
The will appoints Maria Roscic and Mate Roscic as executors of the estate, gifts $20,000 to Ilija Josipovic and gives the residuary estate in equal shares to the children of Tereaz Ruzic, the children of Andela Markac, the children of Valentin Androcec and the children of Pavo Androcec.
Mate Roscic predeceased the deceased and Maria Roscic has renounced probate. The plaintiff has been authorised to apply for letters of administration with the will annexed pursuant to s 11 of the Trustee Companies Act1984.
After the plaintiff was authorised to act, it discovered a document dated 12 September 2002 (‘the informal document’). The informal document was stored in the deceased’s safe custody packet with the Australia and New Zealand Bank (‘ANZ Bank’), together with the certificate of title to the deceased’s house.
The informal document is handwritten in Croatian and is signed by the deceased. The accredited translation obtained by the plaintiff provides:
12/09/2002
I, Marija Josipovic, née Androcec, am leaving behind me in the yard cash money CASH BURIED in the ground on the right side as you go to the bungalow under the kitchen window, but not under the window, but immediately next to the tree and next to the edge of the concrete. There are fifty thousands in case of my sudden death. I authorise Mato and Marija Roscic to take it and send Ilija 45 thousand and take 5 thousand for themselves for their help.
Further, I want that Ilija bury me with that money and have a nice monument built. I want to be buried in Gorican, where I was born.
That would be my wish [illegible]
Marija.
The plaintiff followed the instructions and discovered $50,000 hidden as described by the informal document.
The application
The plaintiff submits the informal document contains testamentary dispositions notwithstanding it was not witnessed in compliance with s 7 of the Wills Act 1997 (‘the Act’) and that the document should be construed as a codicil to the will providing an additional gift to Ilija Josipovic.
On 19 August 2019, the plaintiff commenced this application for the informal document to be admitted to probate pursuant to s 9 of the Act. As the value of the estate exceeds $1,000,000 and the plaintiff is unaware of the identity of all the residuary beneficiaries, it is unable to seek to prove the informal document through the Registrar of Probates under r 2.09 of the Supreme Court (Administration and Probate) Rules 2014, and consequently filed a notice to produce, bringing the application before the Court.
In anticipation of the preliminary directions hearing on 11 October 2019, the Court made orders directing the plaintiff to provide a copy of the application to any persons who have approached it purporting to have an interest in the deceased’s estate.
At the next directions hearing of the proceeding, the plaintiff informed the Court that it had received correspondence from Marijan Androcec, who lives in Croatia, on 11 November 2019, who advised the plaintiff that he does not accept the informal document as a valid testamentary document. The Court made orders that, by 6 December 2019, Marijan Androcec file any summons together with any affidavits on which he intended to rely in support of his opposition to the informal document dated 12 September 2002 being admitted into probate.
On 12 December 2019, with no application being received from Marijan Androcec, orders were made vacating the listing, and returning the matter for further directions on 27 March 2020 with a view that the matter be considered on the papers, subject to the view of the trial judge.
Following the filing of further material in February 2020, there was some correspondence with the Court in March 2020 as the plaintiff sought a grant in solemn form. The plaintiff subsequently confirmed it was content for the Court to consider the application for a grant in common form, which accordingly could be considered on the papers without the need for a formal hearing.
Principles
The plaintiff refers to s 9 of the Act, noting the provision allows the Court to admit to probate a document that was not executed in accordance with the formal requirements.
Section 9 is a remedial provision; the intention of the legislation is to allow the Court to give effect to a testator’s true intention despite the fact that a will has not been validly executed. It should be construed to achieve the objects and purposes of the Act, although the importance of the formalities should not be unduly relegated.[1]
[1]Re Ray [2020] VSC 699, [102] (McMillan J), citing Re Estate of Brock (2007) [2007] VSC 415, [20] (Hollingworth J).
Three criteria must be satisfied before a document will be admitted into probate under s 9 of the Act:
(a) there must be a document;
(b) the document must record the testamentary intentions of the deceased; and
(c) the deceased must have intended the document to be his or her will.[2]
[2]Re Masters; Hill v Plummer (1994) 33 NSWLR 446, 449 (Kirby P), 455 (Mahoney JA), 466 (Priestley JA); Equity Trustees Ltd v Levin [2004] VSC 203, [14] (Whelan J); Fast v Rockman [2013] VSC 18, [46] (Habersberger J); Re Ray [2020] VSC 699, [103] (McMillan J).
With respect to the third criterion, the Court must be satisfied that the testator, by some word or act, demonstrated an intention that, without any alteration or reservation, the alleged informal will should have effect as his or her will. The testator must have intended the alleged informal will to be a legally operative act that disposes of their property upon their death rather than a provisional, preliminary or tentative proposal.[3]
[3]Fast v Rockman (n 4) [59], [73], [75], [86], [92], [96], [105]–[110], [114] (Habersberger J), citing, inter alia, Mitchell v Mitchell [2010] WASC 174, [42] (EM Heenan J).
In addition, the propounder of an informal will must satisfy the Court that the testator had the requisite testamentary capacity and was not pressured or coerced into making the informal will.[4] The propounder must establish the requisite elements on a balance of probabilities.
[4]Ackerley v Felton [2012] NSWSC 1468, [30] (Young AJ); Fielder v Burgess [2014] SASC 98, [25] (Kourakis CJ); Jageurs v Downing [2015] VSC 432, [19] (McMillan J); Re Kelsall [2016] VSC 724, [22] (McMillan J). See Veall v Veall (2015) 46 VR 123, 174–5 [168]–[171] (Santamaria JA), regarding the usual presumptions.
Further, due to the nature of probate, the consequences of any findings that may be made, and the inability hear any evidence from the testator, the Court needs to evaluate the evidence with great care in accordance with the Briginshaw v Briginshaw principle.[5]
[5]Fast v Rockman (n 4) [48] (Habersberger J).
The plaintiff’s submissions
Section 9 of the Act
The plaintiff submits the informal document is clearly a document and, among other things, records the deceased’s testamentary intentions. It directs the named executors to recover hidden cash and give $45,000 to Ilija Josipovic and keep $5,000 for their assistance. It also contains a burial direction, and a wish for Ilija Jospovic to use the money to build a monument.
The plaintiff submits the Court needs to be satisfied that the deceased, by some word or act, demonstrated an intention that, without any alteration or reservation, the informal document should have effect as her will.
The deceased signed the informal document, a strong indication that she intended the document to take effect. Further, the deceased appeared to have prepared the informal document herself. The deceased was born in Croatia and it is reasonable to assume that she would have prepared the document in her mother tongue. The handwriting in the will is very unlike the handwriting in the informal document. The plaintiff submits it is likely that another person prepared the will for the deceased. Mrs Roscic, one of the witnesses and named executors, has not responded to the plaintiff’s request for information and, as such, the plaintiff cannot state definitively who wrote the will.
The deceased took some care in preparing the informal document, storing it in safe custody with the ANZ Bank, together with the certificate of title to her property. This suggests that she regarded the informal document as important and worthy of protection. The informal will is dated one day after the date of the will. That the deceased prepared the informal document so soon after executing the will suggests that the preparation of the informal document was part of her course of action to outline her testamentary dispositions.
Testamentary capacity
The plaintiff submits that, according to the deceased’s death certificate, she was 88 years old when she died, making her 75 at the time she prepared the informal document. The deceased’s death certificate did not note any medical conditions that would have affected her capacity 12 years prior to her death.
The plaintiff has been unable to obtain any contemporaneous treatment records from 2002. The records that have been obtained do not suggest the deceased was suffering from any condition that would impair her capacity.
The plaintiff has obtained medical documents related to the deceased by subpoena. On 26 February 2015, she was described by Dr Christabel Kelly, a gastroenterology registrar, as a ‘delightfully feisty lady’. This information does not note any cognitive deficit in the deceased. Further, the deceased was able to accurately recall the location and the amount of the hidden cash and the authority granted to her executors reflects that she was aware and able to recall that she appointed them as executors to her will.
Knowledge and approval
The deceased prepared the informal document. She then stored it in her safety deposit box. This indicates the deceased knew and approved the contents of the informal document.
Undue influence
The deceased most likely prepared the informal document herself. She stored it in her deposit box. The informal document only dealt with the hidden cash. As the deceased was very likely the only person who knew about the hidden cash, it is unlikely that another person would have influence over the deceased with respect to the hidden cash.
Consideration
The informal document is clearly a document and it clearly records the testamentary intentions of the deceased. It makes reference to one of the deceased’s assets, and expressly makes directions as to how she wishes it to be dealt with (by the named executors of her will) in the event of her death. The direction that some of the funds be appropriated for her burial adds further weight to the conclusion that the deceased intended the document to take effect on her death. Thus, the intentions expressed in the informal document are both dispositive and testamentary.
The plaintiff submits the deceased intended the informal document to take effect as a testamentary document. That the deceased undertook the formal act of signing the document, and did so the day after signing her will, suggests that the informal document contained a finalised intention as to what was to occur with the cash funds at her death.
The circumstances around the creation and treatment of the document support this conclusion. As noted by the plaintiff, the informal document was stored with her financial institution with other important items and was executed only a day after her will, thereby forming part of a broader course of action settling her testamentary affairs. The deceased clearly treated the document as one of practical significance, intending that it take effect, in conjunction with her will, upon her death. The Court is satisfied that the deceased intended the informal document to take effect as a codicil to her will.
The plaintiff has not been able to adduce any evidence in respect of the deceased’s testamentary capacity at the time the will or the informal document was drafted. However, the medical evidence obtained from a significant period after this time does not suggest the deceased suffered from any cognitive deficit that would impair her capacity. Further, the written contents of the will support a conclusion the deceased understood the nature of her assets and the effect of the document. The document correctly identified the amount of cash stored in the ground and its position, and it directs the executors named in the will as the persons tasked with carrying out her instructions for distribution of the cash.
Given the deceased prepared the document and made arrangements for it to be stored in her safe deposit box with ANZ Bank and there is no evidence to suggest the beneficiaries of the buried funds were aware of it, the Court is satisfied the deceased knew and approved of the informal document and it was not procured by undue influence.
Orders
Accordingly, the Court orders as follows:
(a) Subject to the requirements of the Registrar of Probates, letters of administration of the will of Marija Josipovic dated 11 September 2002 and the handwritten document dated 12 September 2002, exhibited to the affidavit of Jasmine Berger filed 4 February 2021, be granted to the plaintiff.
(b) The plaintiff’s costs of the proceeding be retained and paid out of the estate of the deceased.
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