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Saric v Vukasovic

Saric v Vukasovic

Case [2019] VSCA 57 18 March 2019

Testator’s Family Maintenance

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0072

GRGO SARIC	Applicant
v
TANJA VUKASOVIC (who is sued as the executrix of the will and estate of DANKA SARIC, deceased)	Respondent

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JUDGES:	TATE, NIALL and EMERTON JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 February 2019
DATE OF JUDGMENT:	18 March 2019
MEDIUM NEUTRAL CITATION:	[2019] VSCA 57
JUDGMENT APPEALED FROM:	[2017] VSC 759 (McMillan J)

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TESTATOR’S FAMILY MAINTENANCE — Appeal — Application for provision by husband — Testator’s will made no provision for husband and only made provision for three adult children of the marriage — Applicant contended provision should be made for husband of absolute interest in family home — Judge made provision of life interest in smaller investment property — Marriage unhappy in later years — Whether judge wrongly took into account conduct of applicant towards deceased — Whether judge took into account irrelevant considerations and failed to take into account relevant consideration — Relevance of financial position of beneficiaries — No error — Leave to appeal refused — Administration and Probate Act 1958 s 91(4).

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr W Gillies	Pro Bono
For the Respondent	Mr R Boaden	Dominic Tesoriero & Co

TATE JA
NIALL JA
EMERTON JA:

Introduction

Danka Saric died on 1 June 2014 at the age of 60. She was survived by her husband, the applicant, and their three adult children: Tanja, Marija and Andrija. Tanja, as the executrix of the deceased’s will, is the respondent to this application for leave to appeal (and, if leave is granted, the appeal).

By her will made on 31 October 2013, the deceased left her estate to her three children, with greater provision being made for Andrija, who, in addition to a third of the estate, is to receive the amount of $200,000 from the sale of the family home.

The deceased did not make any provision for the applicant in her will. The will contains the following declaration by the deceased:

I DECLARE that I have made no provision herein for my husband because I believe that he has adequate assets of his own in Australia and in Croatia to be sufficiently financially secure and to allow him a comfortable life, such as he requires nothing further from me for his security in life, and I firmly believe that our children will attend to his other needs in his old age.

The principal assets of the deceased at the time of her death were a half-share in the family home at 68 Ford Street, Ivanhoe, valued at $775,000, and a half-share in a smaller property at 3/64 Ford Street, Ivanhoe (‘Unit 3’), valued at $310,000.

When the deceased executed her will, the two properties were owned jointly by the deceased and the applicant. Before her death, the deceased and the applicant took steps to change the form of ownership of the properties to become tenants in common in equal shares. This was done at the request…

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 Saric v Vukasovic

Details

AGLC: Saric v Vukasovic [2019] VSCA 57
Case: [2019] VSCA 57
Decision Date: 18 March 2019

CaseChat Overview and Summary

The appeal in Saric v Vukasovic involved a dispute between the husband of the deceased, Mr Saric, and the children of the deceased from her previous marriage. The deceased made a will that made no provision for Mr Saric and only provided for her three adult children. Mr Saric applied for provision under the Administration and Probate Act 1958, arguing that he should be granted an absolute interest in the family home. The judge, however, made a provision for Mr Saric to have a life interest in a smaller investment property. The court was required to decide whether the judge had erred in considering the conduct of Mr Saric towards the deceased, and whether the judge had taken into account irrelevant considerations or failed to consider relevant ones. The court also needed to determine the relevance of the financial position of the beneficiaries.

The court found that the judge did not err in taking into account the conduct of Mr Saric towards the deceased, as it was relevant to the application. The court held that the judge had not taken into account irrelevant considerations or failed to consider relevant ones. The court also held that the financial position of the beneficiaries was relevant to the application, but it was not the only consideration. The court found that the judge had appropriately balanced the relevant considerations and made a just and equitable provision for Mr Saric.

The court refused leave to appeal, holding that there was no error in the judge's decision. The court held that the judge had appropriately exercised his discretion under the Act, and that the provision made for Mr Saric was just and equitable. The court noted that the deceased had made no provision for Mr Saric in her will, but the court held that this was not determinative of the application. The court held that the relevant consideration was the need for Mr Saric to have reasonable financial provision for his maintenance.

No further orders were made by the court. The decision in Saric v Vukasovic is a useful reminder of the factors that the court will consider when making a provision under the Administration and Probate Act 1958. The court will consider the conduct of the parties, the financial position of the beneficiaries, and any other relevant considerations. The court will exercise its discretion to make a just and equitable provision for the applicant.

Orders