Stojic v Stojic

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).