Re Josipovic - [2021] VSC 43

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…

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 Re Josipovic

Details

AGLC: Re Josipovic [2021] VSC 43
Case: [2021] VSC 43
Decision Date: 11 February 2021

CaseChat Overview and Summary

A woman passed away, and her family found a document in her bank safe custody packet. The document contained directions for the location and distribution of cash that the deceased had buried in her back garden. The family filed an application to determine whether the document should be considered a codicil to her will. The case was heard in the Supreme Court of Victoria. The court needed to decide if the deceased intended the document to act as a codicil to her will and whether she had testamentary capacity when she created the document.

The court examined the document and found that it was a signed, handwritten note. The deceased had explicitly stated that it was a codicil to her will. The court considered the circumstances surrounding the creation and storage of the document, including the deceased's clear instructions for its location and distribution. The court concluded that the deceased intended the document to act as a codicil to her will. The court also found that the deceased had testamentary capacity when she created the document, as there was no evidence to suggest otherwise.

The court granted the family's application, finding that the document should be considered a valid codicil to the deceased's will. The court relied on section 9 of the Wills Act 1997 (Vic), which allows for the validity of informal wills. The court determined that the deceased's clear instructions and the presence of testamentary capacity supported the document's validity as a codicil. The court's decision ensured that the deceased's wishes, as expressed in the document, would be carried out.

The final orders of the court included the recognition of the document as a valid codicil to the deceased's will and the direction that the document be used to guide the distribution of the cash found in the back garden. The court's decision provided clarity and certainty for the family, allowing them to follow the deceased's wishes as expressed in the document.

Orders