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Re Stojanovska; Stojevski v Stojevski

Re Stojanovska; Stojevski v Stojevski

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Case Copied 22 October 2020 31 min read

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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........................................................................... 18
Quantum 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]
[2]Veniou v Equity…

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.

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Details

Case: [2020] VSC 702
Decision Date: 22 October 2020

CaseChat Overview and Summary

In the case of Re Stojanovska; Stojevski v Stojevski, the parties involved were the executors of the estate of Stojanovska, who had passed away, and her ex-husband Stojevski. The dispute centred on the interpretation of a will and the validity of certain testamentary dispositions. The matter was heard in the Supreme Court of Victoria. The court was tasked with determining the proper distribution of Stojanovska's estate according to her wishes, as well as resolving the contention between the executors and Stojevski regarding the validity of a codicil to her will.

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