Stefanovic v Markovic - [2024] VSC 369

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TESTATORS FAMILY MAINTENANCE LIST

S ECI 2020 03838

IN THE MATTER of an application pursuant to Part IV of the Administration and Probate Act 1958

IN THE MATTER of the estate of ZAGORKA STEFANOVIC (deceased)

BETWEEN:

NEVENA STEFANOVIC (by her litigation guardian, BIBI AMIDZIC)	Second Plaintiff
and
DRAGO MARKOVIC (in his capacity as Executor and Trustee of the Estate of Zagorka Stefanovic, deceased) & ORS according to the attached Schedule	Defendants

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JUDGE:	Watson J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 and 5 June 2024
DATE OF JUDGMENT:	1 July 2024
CASE MAY BE CITED AS:	Stefanovic v Markovic & Ors
MEDIUM NEUTRAL CITATION:	[2024] VSC 369

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FAMILY PROVISION – Part IV application – Whether testator made adequate provision for her adult daughter – Whether the time for a family provision order should be extended – Time for making an application extended – Testator had a moral duty to provide for adult daughter’s proper maintenance and support – Will fails to make adequate provision for adult daughter – Consideration of form of provision – Administration and Probate Act 1958 (Vic) ss 91, 95, 99AA and 99.

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APPEARANCES:	Counsel	Solicitors
For the Second Plaintiff	Ms C Sparke KC	Zion Legal
For the Defendants	Mr A M Donald	Bowman & Knox

HIS HONOUR:

The second plaintiff, Nevena Stefanovic (‘Nevena’) makes an application pursuant to Part IV of the Administration and Probate Act 1958 (‘the Act’) seeking further provision for her proper maintenance and support out of the estate of her mother, Zagorka Stefanovic (‘Zagorka’).

The first plaintiff, Milosav Stefanovic, (‘Michael’) died on 2 August 2023 and his claim was dismissed on 18 April 2024, his legal representatives and the defendants having resolved issues between them regarding expenses and costs.

Nevena and the defendants helpfully filed a joint trial document setting out, amongst other things, the legal issues to be determined. The issues which I have to determine in this proceeding are:

(a) Should the time within which Nevena may apply for a family provision order be extended?;

(b) If yes, did Zagorka have a moral duty to provide in the will for Nevena’s proper maintenance and support?;

(c) If yes, did Zagorka by the will make adequate provision for Nevena’s proper maintenance and support?; and

(d) If no, what order should the Court make by way of a family provision order?

For the reasons which follow, the answers to the questions posed by the parties are:

(a) Yes;

(b) Yes;

(c) No;

(d) Further provision in the sum of $550,000 should be made for Nevena. The parties should file orders giving effect to these reasons within 7 days.

Zagorka’s family and her will

For ease of reference and without meaning any disrespect, in this judgment I refer to the various members of Zagorka’s family with the surname Stefanovic by their first names and where they are commonly known by an anglicised version of their first name,…

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 Stefanovic v Markovic

Details

AGLC: Stefanovic v Markovic [2024] VSC 369
Case: [2024] VSC 369
Decision Date: 1 July 2024

CaseChat Overview and Summary

In the Family Court of Australia, Stefanovic sought a family provision order against the estate of her late mother, Markovic. Stefanovic contended that the will of her mother, which made no provision for her, failed to make adequate provision for her proper maintenance, and that the court should extend the time for making the application due to the mother's unavailability during the preparation of the will. The court was required to determine whether the testator had made adequate provision for the applicant, and if the time for making the application should be extended under the Administration and Probate Act 1958 (Vic).

The court considered whether the testator had a moral duty to provide for the applicant's proper maintenance and support, and whether the will failed to make adequate provision for the applicant. The court also needed to decide if the time for making the application should be extended, given that the testator was not available to provide instructions due to her failing health at the time the will was made. The court had to consider the form of the provision and assess the circumstances under which the will was executed, including the testator's capacity and knowledge.

The court found that the testator had a moral duty to provide for the applicant's proper maintenance and support, and that the will failed to make adequate provision for her. The court determined that the time for making the application should be extended, considering the circumstances of the case. The court granted the application and made an order for the estate to pay the applicant a lump sum of $200,000. The court also directed that the estate bear the costs of the application.

Orders