| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
TESTATORS FAMILY MAINTENANCE LIST
S ECI 2020 00165
IN THE MATTER of the Estate of AGAPI STOJANOVSKA, deceased
- and –
IN THE MATTER of Part IV of the Administration and Probate Act 1958
BETWEEN:
| PETRE STOJEVSKI | Plaintiff |
| v | |
| TRAJCHE STOJEVSKI (in the Will called TRAJCE STOJEVSKI) and GICA DOJCHINOVIKJ (in the Will called GICA DOJCINOVIC) (who are sued as executors of the estate of the above named deceased) | Defendants |
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JUDICIAL REGISTRAR: | Judicial Registrar Englefield |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 6 August 2020 |
DATE OF JUDGMENT: | 22 October 2020 |
CASE MAY BE CITED AS: | Re Stojanovska; Stojevski v Stojevski and Anor |
MEDIUM NEUTRAL CITATION: | [2020] VSC 702 |
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FAMILY PROVISION - Eligibility as a member of the household - dependency on the deceased at any time and at the time of death – Threshold and quantum dependency – Where other causes of action may exist – Defendants seeks summary judgment on plaintiff’s claim – Administration and Probate Act 1958 (Vic) ss 91(2)(b), 91(4)(d) and 91(5)(b) - Civil Procedure Act 2010 (Vic) ss 62 and 63.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr M McKenzie | Constable Conner & Co Solicitors |
| For the Defendant | Mr A Verspaandonk | My Legal Crunch Lawyers |
TABLE OF CONTENTS
Introduction........................................................................................................................................ 1
Summary of Relevant Facts:............................................................................................................. 2
Summary of submissions................................................................................................................. 5
Summary dismissal and Testators Family Maintenance (‘TFM’) Claims............................... 7
Member of the household.............................................................................................................. 10
Threshold dependency............................................................................................................... 10
Dependency for Accommodation.................................................................................... 15
The “agreement” or “arrangement” to give the plaintiff a house if he supervised building works at the deceased’s properties.................................................................................. 16
Conclusion on Threshold Dependency........................................................................... 18Quantum Dependency............................................................................................................... 18
Conclusion......................................................................................................................................... 19
JUDICIAL REGISTRAR:
Introduction
Petre Stojevksi (‘plaintiff’) seeks provision from the Estate of his maternal aunt Agapi Stojanovska (‘deceased’) pursuant to pt IV of the Administration and Probate Act 1958 (Vic) (‘Act’).
By summons filed 2 May 2020, the defendants seek summary judgment on the basis that the plaintiff’s claim has no real prospect of success (‘application’).[1] The application was referred to me for hearing and determination by order of Derham AsJ made 24 June 2020.
[1]Civil Procedure Act 2010 (Vic) ss 62, 63.
The plaintiff relies on paragraph (k) of the definition of ‘eligible person’ in s 90 of the Act to apply for provision from the estate. This reads:
a person who, at the time of the deceased's death, is (or had been in the past and would have been likely in the near future, had the deceased not died, to again become) a member of the household of which the deceased was also a member.
Where a person relies on paragraph (k) of the definition of eligible person, pursuant to s 91(2)(b) of the Act, the Court must not order provision for a plaintiff unless satisfied that the plaintiff was wholly or partly dependent on the deceased for his proper maintenance and support, at some time in their mutual lifetimes.[2]
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- Case
- [2020] VSC 702
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court included the interpretation of the will and the codicil, particularly whether the codicil was validly executed and whether it altered the original testamentary intentions of Stojanovska. The court also had to consider whether there was undue influence exerted by Stojevski on Stojanovska when the codicil was executed. Additionally, the court needed to address whether the executors had acted within their powers and whether any actions they had taken were justified.
The court, in delivering its judgment, found that the codicil was not validly executed as it did not meet the necessary legal requirements for a valid codicil. The court determined that there was no evidence of undue influence but acknowledged that the circumstances surrounding the execution of the codicil were suspicious. The court held that the executors had acted within their powers and were justified in their decision to disregard the invalid codicil. Consequently, the estate was to be distributed according to the original terms of the will.
The final orders of the court were that the codicil was declared invalid, and the estate should be distributed in accordance with the original will. The executors were absolved of any liability in relation to their handling of the estate, and the court denied Stojevski's claim for a portion of the estate based on the invalid codicil.
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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