Zivojin v Babic - [2013] VSC 57

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMERCIAL AND EQUITY DIVISION
PROBATE LIST

S PRB 2010 11002

MARTIN ZIVOJIN AND ANNA ROBINSON	Plaintiffs
v
OMER BABIC AND STANKA POSTOLOVA	Defendants

---

JUDGE:	HABERSBERGER J
WHERE HELD:	MELBOURNE
DATES OF HEARING:	29 FEBRUARY, 1, 5-7 MARCH 2012
DATE OF JUDGMENT:	20 FEBRUARY 2013
CASE MAY BE CITED AS:	ZIVOJIN v BABIC
MEDIUM NEUTRAL CITATION:	[2013] VSC 57

---

Probate – Application to revoke grant of probate of 2005 will – Alleged later will signed in suspicious circumstances – Errors and inaccuracies in alleged later will – Inconsistencies with pattern of testator’s will making – Inherent improbability of evidence about the signing of the alleged later will – Conflicting handwriting evidence from two experts – Onus on proposed propounders to prove that testator knew and approved the contents of the alleged later will – Whether onus discharged.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr J K Arthur	Haines & Polites
For the First Defendant	Mr G S Baker	Frank J Sagaria & Associates
For the Second Defendant	Mr R R Boaden	Slater & Gordon

HIS HONOUR:

Introduction

By a summons dated 10 November 2010 the plaintiffs, Martin (Martic) Zivojin and Anna Robinson, sought:

(a)revocation of the grant of probate of the will of the deceased, Mihajlo Mojcec, dated 20 December 2005, (“the December 2005 will”) made by this Court on 30 August 2010; and
(b)a grant of probate of a later will of the deceased, dated 11 August 2007 (“the August 2007 will”).

The plaintiffs were the executors named in the August 2007 will. They were a nephew and niece of the deceased.

Mihajlo (Michael) Mojcec died on 16 August 2009. He was survived by his second wife, Stanka Postolova, the second defendant, and by his step-son, Zoranco (Zoran) Postolov. The deceased’s only son, Robert, pre-deceased him. Probate of the December 2005 will was granted to the first defendant, Omer Babic, the executor named in that will. Mr Babic was the brother-in-law of the deceased. Mrs Postolova was added as a second defendant by an order made on 18 August 2011.

Whilst the summons purported to be made in the proceeding in which the grant was made pursuant to rule 11.02 of the Supreme Court (Administration and Probate) Rules 2004, this was not strictly accurate as Mr Zivojin and Ms Robinson should have been named in their summons as applicants not plaintiffs and Mr Babic should have retained his description as the plaintiff and been named as the respondent to the summons. However, nothing turns on this misdescription and in order to avoid confusion I will continue to refer to Mr Zivojin and Ms Robinson as the plaintiffs, to Mr Babic as the first defendant and to Mrs Postolova as the second defendant.

According to the inventory contained in Mr Babic’s application for probate, the deceased’s estate consisted of the following assets:

(a)his home at 71 Kernot Street, Spotswood (“the Spotswood property”), valued at $520,000;

(b) land…

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 Zivojin v Babic

Details

AGLC: Zivojin v Babic [2013] VSC 57
Case: [2013] VSC 57
Decision Date: 20 FEBRUARY 2013

CaseChat Overview and Summary

In Zivojin v Babic, the applicants sought to revoke a grant of probate for a will dated 2005, arguing that a subsequent will signed in 2007 should be admitted instead. The applicants contended that the 2007 will was signed under suspicious circumstances and included numerous errors and inaccuracies. The Federal Circuit and Family Court of Australia was tasked with determining whether the 2007 will should replace the 2005 will as the valid testamentary document.

The court examined the burden of proof required to establish the validity of the 2007 will. It was established that the applicants needed to demonstrate that the testator knew and approved the contents of the alleged later will. The court considered the suspicious circumstances surrounding the signing of the 2007 will, the errors and inaccuracies within it, and the inconsistencies with the testator’s pattern of will making. Additionally, the court evaluated the conflicting handwriting evidence presented by two expert witnesses. The court found that the evidence regarding the signing of the 2007 will was inherently improbable and that the onus on the applicants to prove the validity of the 2007 will was not discharged.

As a result, the applicants' application to revoke the grant of probate for the 2005 will was dismissed. The court held that the applicants failed to prove that the testator knew and approved the contents of the 2007 will. Consequently, the 2005 will remained the valid testamentary document.

The court did not make any further orders beyond dismissing the application to revoke the grant of probate for the 2005 will. The 2005 will continued to stand as the valid testamentary document for the estate.

Orders