JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	20, 22 November 2013
DATE OF JUDGMENT:	18 December 2013
CASE MAY BE CITED AS:	Vukotic v Vukotic
MEDIUM NEUTRAL CITATION:	[2013] VSC 718

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WILLS — Testamentary capacity — Whether the deceased had capacity to give instructions for a will — Whether the deceased had capacity to execute a will — Medical evidence not sufficient to support a finding of a lack of capacity — Deceased had capacity according to the Banks v Goodfellow test to give instructions — Deceased had capacity according to the Parker v Felgate test to execute the will

WILLS — Knowledge and approval — Onus of proof to be applied — Suspicious circumstances — Court satisfied that the deceased read over and understood the provisions of the will

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr T Sowden	Robinson Gill
For the Defendant	Ms C McOmish	Slater & Gordon

HER HONOUR:

Introduction

Nada Ojkic (‘the deceased’) was born on 20 March 1920 and died on 25 July 2010, aged 90 years. Her husband, Borislav Ojkic, died in 1998. They did not have any children. The plaintiff and the defendant are the deceased’s nephews, the sons of her sister who died in Serbia in August 2008. The plaintiff, who is aged 65, and defendant, who is aged 60, were born and live in Serbia. Both are practising doctors in Belgrade. The estate of the deceased comprises her house at 22 Kalimna Street, Balwyn, valued at $1 300 000, and $5924 in the bank.

The deceased left a will dated 13 June 2010 (‘the 2010 will’). In that will, the deceased:

(a)appointed the plaintiff as her executor;
(b)left a legacy of $100 000 to Marija Ojkic, the daughter of the deceased’s husband’s nephew (also named Borislav Ojkic), who died recently;
(c)gave an option, exercisable within 60 days of the grant of probate of the deceased’s will, to her friend and neighbour, Dr Paul Soon,[1] to purchase the deceased’s home at 22 Kalimna Street Balwyn for the sum of $1 000 000;
(d)left 10% of her residuary estate to the defendant; and
(e)left 90% of her residuary estate to the plaintiff.

[1]Dr Soon died on 4 September 2010 and did not exercise the option granted to him in the 2010 will. The parties agreed at the trial that the option was a personal right, not exercisable by his executor.

The 2010 will replaced an earlier will by the deceased dated 4 August 2009 (‘the 2009 will’). In that will, the deceased;

(a)appointed the plaintiff as her executor;
(b)left her residuary estate as follows:
(i)50% to the plaintiff;
(ii)10% to the defendant;
(iii)15% to Marija Ojkic;
(iv)15% to Bojana Ojkic, the nephew…

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 Vukotic v Vukotic

Details

AGLC: Vukotic v Vukotic [2013] VSC 718
Case: [2013] VSC 718
Decision Date: 18 December 2013

CaseChat Overview and Summary

The case of Vukotic v Vukotic involved a dispute over the validity of a will. The deceased, who had passed away, had left a will that was being contested by his family. The primary issue before the court was whether the deceased had the necessary testamentary capacity to execute the will and to give instructions for its creation. The court also had to consider the burden of proof in relation to the deceased's knowledge and approval of the will's contents. The High Court of Australia heard the appeal and determined that the deceased indeed had the requisite mental capacity to create and execute the will, applying the Banks v Goodfellow and Parker v Felgate tests respectively. The court found that the evidence provided, particularly the medical testimony, did not sufficiently support a conclusion that the deceased lacked the necessary capacity.

The legal issues before the court were centred on determining the deceased's mental capacity at the time of making and executing the will. The court examined the Banks v Goodfellow test, which assesses whether the deceased had the capacity to understand the nature of making a will and its effects, and the Parker v Felgate test, which considers whether the deceased had the capacity to execute the will. Additionally, the court needed to address the question of knowledge and approval, specifically whether the deceased had read and understood the will's provisions. The court considered the onus of proof in relation to suspicious circumstances, ultimately finding that the deceased had indeed read and understood the will's contents.

The High Court found that the medical evidence presented was not sufficient to establish a lack of testamentary capacity. The deceased demonstrated an understanding of the nature of the will and its effects, aligning with the Banks v Goodfellow test. The court also concluded that the deceased had the capacity to execute the will according to the Parker v Felgate test. The evidence suggested that the deceased had the requisite knowledge and approval of the will's provisions. The court was satisfied that the deceased had read and understood the will, thereby discharging the burden of proof in relation to suspicious circumstances. The court ruled in favour of the validity of the will.

The final orders of the court affirmed the validity of the will, recognising the deceased's testamentary capacity and knowledge and approval of the will's contents. The court rejected the contentions that the deceased lacked the capacity to execute the will, thereby upholding the will as the valid testament of the deceased. The court's decision was grounded in a thorough examination of the medical evidence and the application of established legal tests for testamentary capacity.

Orders