Stojic v Stojic

Case [2018] NSWCA 28

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Stojic v Stojic [2018] NSWCA 28
Hearing dates: 26 September 2017
Decision date: 28 February 2018
Before: Meagher JA at [1];
Payne JA at [2];
White JA at [3]
Decision:

1. Appeal allowed.
2. Order that orders 1-6 made on 3 March 2017 be set aside.
3. Order that the proceedings be remitted to the Equity Division for a new trial in relation to the validity of the alleged will of the deceased of 23 May 2014, but not including the issue whether the deceased had testamentary capacity to make the alleged will of 23 May 2014.
4. Order that the respondent pay the appellants’ costs of the appeal.
5. Grant to the respondent a certificate under the Suitors’ Fund Act 1951 (NSW).
6. Order that the costs of the proceedings before Lindsay J await the outcome of the new trial and be within the discretion of the judge conducting that trial.

Catchwords: SUCCESSION – wills, probate and administration – probate and letters of administration – validity of will – whether the deceased knew and approved the contents of the will – where suspicious circumstances exist - where testator has read the will – where findings of fact insufficient to determine testator’s knowledge and approval of the will - more findings necessary to resolve disputed questions of fact – new trial ordered
Legislation Cited: Succession Act 2006 (NSW) Ch 3
Suitors’ Fund Act 1951 (NSW)
Uniform Civil Procedure Rule 2005 (NSW) r 51.53
Cases Cited: Atter v Atkinson (1865-69) LR 1 P & D 665
Baker v Batt (1838) 2 Moore 317; 12 ER 1026
Barry v Butlin (1838) 2 Moore 480
Burns v Burns [2016] EWCA Civ 37
Church v Mason [2013] NSWCA 481; (2013) 12 ASTLR 190
Estate of George Aeneas McDonald; Howard v The Sydney Children’s Hospital Network (Randwick & Westmead) [2015] NSWSC 1610
Fuller v Strum [2002] 2 All ER 87
Fulton v Andrew (1875) 7 LR HL 448
Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430
Hobhouse v Macarthur-Onslow [2016] NSWSC 1831
Hoff v Atherton [2004] EWCA Civ 1554
In Re Morris, Decd [1971] P 62
In the Estate of Osment [1914] P 129
Nock v Austin (1918) 25 CLR 519
Public Trustee v McKeon (1917) 17 SR (NSW) 157
Re Estate Stojic (dec’d) [2017] NSWSC 168
Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285
Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker [2007] NSWCA 136
Veall v Veall (2015) 46 VR 123; [2015] VSCA 60
Category:Principal judgment
Parties: Ivanna Ann-Marie Stojic (1st Appellant)
Ivan Matthew Stojic (2nd Appellant)
Simon Stojic (Respondent)
Representation:

Counsel:
D Smallbone with D W Rayment (Appellant)
R Wilson SC with C Birtles (Respondent)

  Solicitors:
Prime Lawyers (Plaintiffs)
Teece Hodgson & Ward (Respondent)
File Number(s): 2017/88978
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Equity Division
Citation:
[2017] NSWSC 168
Date…

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AGLC
Stojic v Stojic [2018] NSWCA 28
Case
[2018] NSWCA 28
Decision Date

CaseChat Overview and Summary

The appellants, children of the deceased, challenged the validity of an alleged will dated 23 May 2014, propounded by the respondent, the deceased's former de facto partner. The primary dispute concerned whether the deceased knew and approved of the contents of this alleged will, particularly in light of alleged suspicious circumstances surrounding its execution. The matter came before the Court of Appeal of New South Wales, comprising Meagher, Payne and White JJA.

The central legal issue before the Court of Appeal was whether the primary judge had made sufficient findings of fact to determine the deceased's knowledge and approval of the alleged will, given the existence of suspicious circumstances. The court was required to consider whether the evidence presented at the first instance was adequate to resolve these disputed questions of fact, or if further findings were necessary.

The Court of Appeal found that the findings of fact made by the primary judge were insufficient to resolve the disputed questions of fact regarding the deceased's knowledge and approval of the will. Applying the principles governing the validity of wills, particularly where suspicious circumstances are present, the court determined that a new trial was necessary. The appeal was allowed, the previous orders were set aside, and the proceedings were remitted to the Equity Division for a new trial on the validity of the alleged will, excluding the issue of testamentary capacity. The respondent was ordered to pay the appellants' costs of the appeal, with further orders made regarding the costs of the proceedings before Lindsay J and a certificate under the Suitors’ Fund Act 1951 (NSW).

Orders

Orders of the court

1. Appeal allowed.

2. Order that orders 1-6 made on 3 March 2017 be set aside.

3. Order that the proceedings be remitted to the Equity Division for a new trial in relation to the validity of the alleged will of the deceased of 23 May 2014, but not including the issue whether the deceased had testamentary capacity to make the alleged will of 23 May 2014.

4. Order that the respondent pay the appellants’ costs of the appeal.

5. Grant to the respondent a certificate under the Suitors’ Fund Act 1951 (NSW).

6. Order that the costs of the proceedings before Lindsay J await the outcome of the new trial and be within the discretion of the judge conducting that trial.

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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