Zivojin v Babic
[2013] VSC 57
•20 FEBRUARY 2013
| 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 |
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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 | |
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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.
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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 at 1375 Princes Highway, Lara, of unknown value;
(c)a one half interest as tenant in common in property at 105 Tomahawk Creek Road, Pirron Yallock (“the Pirron Yallock property”), of unknown value, (but it was noted that this might not be an asset of the estate as it had been asserted that the deceased held it on trust for the Mojcec Land Trust);
(d) motor vehicles valued at $27,000;
(e) money in the bank totalling $1,596; and
(f) furniture and personal effects valued at $2,500.
The Competing Wills
In the December 2005 will, the deceased appointed Mr Babic as his executor, with Mirjana Panova as substitute executor. Ms Panova was the second cousin of Zoran Postolov’s wife, Elizabeta. She had met Mr Mojcec, through Elizabeta, about the time he married Mrs Postolova and had assisted him with some financial matters. In that will, the deceased left:
(a)the Spotswood property and contents, the land at Lara and the motor vehicles to his wife, Stanka Postolova, with a gift over to Zoran Postolov should she predecease him, and another gift over to Zoran’s children should both of them predecease him; and
(b)any money in the bank and the residue of his estate to be divided equally between his surviving brothers and sisters.
In the August 2007 will, the testator left all of his property to his executors to sell and convert into money to pay his “just debts, funeral and testamentary expenses”. He directed that his share in the Pirron Yallock property along with his company holdings be offered “at market price with the option to buy to my sponsored housekeeper STANKA POSTOLOV” [sic]. After payment of his debts, his estate was to be distributed as follows:
(a) $50,000 to his brother, Alojz Mojcec;
(b) $50,000 to his sister, Anna Vukovik [sic];
(c) $10,000 to Mirjana Panova;
(d)the residue to be divided into 25 equal shares and distributed as follows:
(i)3 shares to his nephew Martic Zivojin and 1 each to Martin’s children James Coburn and Monique Studd;
(ii) 5 shares to his niece Anna Robinson;
(iii) 5 shares to his nephew, Frank Marijancvic;
(iv) 5 shares to his niece, Maria Vukovic; and
(v) 5 shares to his niece, Dianne Marijancvic, now Murphy.
The plaintiffs’ case was that the August 2007 will was executed by Mr Mojcec in Sydney at the home of a friend, Ana Pisko, and that it was duly witnessed by Mrs Pisko and a friend of Mr Mojcec, Marko Kujundzic, who had driven to Sydney with him on 11 August 2007. The original of the August 2007 will was said to have been retained by Mrs Pisko. Its existence only came to light when, in September 2010, Mr Kujundzic visited the deceased’s niece, Dianne Murphy, and found out that he had died in August 2009. Mr Kujundzic told Ms Murphy that she should make contact with Mrs Pisko, which she did. Ms Murphy flew to Sydney and collected the August 2007 will.
The second defendant’s case was that the alleged last will of the deceased was not signed by him and that he was in Melbourne, not Sydney, on 11 August 2007. The second defendant further argued that the August 2007 will should not be admitted to probate, even if signed by him, because the plaintiffs had not discharged the onus of removing the suspicion that, in the circumstances surrounding the preparation and execution of that will, the deceased did not know and approve its contents.
The first defendant adopted and supported the submissions by the second defendant.
The Factual Background
It is helpful, first of all, to set out in roughly chronological order the factual background to this dispute, including the evidence given by the various lay witnesses.
Mr Mojcec was born in September 1933. He was the fourth of seven siblings. He had one son from his first marriage, Robert, who was murdered in 1985. By this time he and his first wife had separated. One of his nephews, Martin Zivojin, lived with him off and on for a number of years before and after Robert was murdered.
Mrs Postolova was born in April 1951. A son, Zoranco, was born in 1982 in Macedonia, formerly part of Yugoslavia. In 1983, her first husband, Goce Postolov, died. In 1986, Mrs Postolova and her son visited Australia. In 1987, they returned to Macedonia so Mrs Postolova could care for her sick parents.
On 4 June 1998, Mr Mojcec executed a will prepared by the solicitors, Secombs. In that will, Mr Mojcec appointed the partners of Secombs at the date of his death, and Branko Roksandic and Heather Jones as his executors; he left $35,000 to his brother, Alojz; a property at Golden Beach to his sister, Anna Vukovic, with a gift over to her children; and three properties and the residue of his estate to Martin Zivojin, either absolutely or by way of life interest and then to one or more of his children, two in Australia and one in the United Kingdom, in differing shares.
In 1999, Mrs Postolova returned to Australia to look after her sick sister. She met Mr Mojcec at the Royal Melbourne Hospital when she was visiting her sister and he was visiting a friend. They were married at the Registry Office on 20 June 2000. Mr Babic, who was married to Mrs Postolova’s sister, was best man at the wedding. Mrs Postolova denied that Michael had sponsored her to remain in Australia or that they had married so that she could remain in Australia. She said that she had arrived on a visa for one year because her sister was in a wheelchair with an amputated leg and that her visa could have been extended because of her sister’s situation. Unfortunately, the sister died in February 2000.
Both Mr Zivojin and Ms Robinson said that they did not find out that their uncle had married Mrs Postolova until after he had died.
Mr Babic said in his affidavit sworn on 1 March 2011 that he knew the deceased “for some fourteen years prior to his death”. In cross-examination he conceded that this period was overstated as he had only met Mr Mojcec through his sister-in-law in 1999 at the earliest. However, he was not challenged about his further statements that “we socialised on a regular basis nearly every weekend. If the deceased did not come to my house, then I would go to his house”.
In 2002, Zoran came to Australia. He lived with his mother and Mr Mojcec at the Spotswood property. In her affidavit sworn on 22 March 2011, Mrs Postolova said that her husband and her son became very close. She said that Michael told her that he wanted to adopt Zoran but he did not do so because Zoran was about to turn 18. In his affidavit sworn on the same day, Mr Postolov said that he loved his stepfather. They were very close. His affectionate name for him was “Majstore” as they were not comfortable with “Dad” or “Uncle Michael”.
Mr Mojcec’s sister, Dragica, died in 2002. Mrs Pisko came to the funeral. She gave evidence that she and Dragica were “like sisters”. Mrs Pisko was Dragica’s maid of honour when she married. She stayed with Michael and Stanka for a few days after the funeral. Mrs Pisko said that she was very friendly with Michael. She said that he used to call her his “Kuma” or godmother. However, she was only about ten years older than Michael. She did not know about or attend his wedding. There was a dispute on the evidence about how often Mrs Pisko had seen Mr Mojcec in the 15 years before, and the seven years since, Dragica’s funeral. Mrs Pisko said that in the 15 year period she had seen Mr Mojcec about seven times. She said that she saw Michael when she visited Dragica or they came to Sydney. Mrs Pisko also said that after she returned to Sydney in 2002 she only had telephone contact with Mr Mojcec a few times until his visit in August 2007. On the other hand, Mrs Postolova said that as far as she was aware the only contact between Mr Mojcec and Mrs Pisko in this whole period was at the time of Dragica’s funeral.
On 23 July 2002, Mr Mojcec executed a will prepared by a solicitor, Frank Sagaria, of Frank J Sagaria & Associates. In that will, Mr Mojcec appointed Mr Babic as his executor, with Ms Panova as substitute executor; he left the Spotswood property, his motor vehicles, “all money in my bank accounts and my superannuation entitlement” to his wife, “Postolova Stanka”, absolutely, with a gift over to her son absolutely should she pre-decease him; and he left a property in Werribee to his brothers and sisters as tenants in common in equal shares.
On 20 May 2003, Mr Mojcec executed another will prepared by Mr Sagaria. In that will Mr Mojcec again appointed Mr Babic as his executor, with Ms Panova as substitute executor; he left his Spotswood property, his motor vehicles and “all money in my bank accounts and my superannuation entitlement” to his wife, “Postolova Stanka”, absolutely, with a gift over to her son absolutely should she pre-decease him; and he left the property at Werribee on trust to be sold with the sum of $500,000 to be paid from the proceeds of sale to his wife absolutely and the rest of the proceeds of sale to be divided equally between two brothers, three sisters, his nephew Martin, Martin’s son James, Martin’s daughter Monique, and another nephew, all as tenants in common in equal shares.
From 2004, Mr Mojcec suffered bad health and was in and out of hospital. In early 2004, Mr Mojcec sold the Werribee property and purchased 96 acres in Lara for $850,000. He leased that property back to the previous owners.
In 2005, Ms Robinson’s husband drowned leaving her with a young daughter. She was living in Moree in New South Wales at that time. Ms Robinson said that after the funeral of her husband, her uncle had asked her what she was going to do now. He said that he was planning to buy a farm and asked her whether she thought she was capable of managing a farm. Mrs Postolova had stood up and said that Anna was not capable and that she could not even manage her own business. In fact, Ms Robinson said she had successfully taken over the management of her husband’s earthmoving business after his death.
Ms Robinson also said that at this time her uncle asked her how much she was in debt. She told him $40,000. He told her to come and see him at the end of the financial year. When she came to Melbourne in early June 2005, he gave her nearly $30,000 to get her out of debt. At her request, the actual sum was paid by three cheques for $9,999 each, for taxation reasons. Mrs Postolova said she found out about the gift on the day Ms Robinson came to visit.
In September 2005, Zoran returned to Australia after spending several months in Macedonia studying chicken farming as he and Mr Mojcec had decided to buy a chicken farm together. Zoran and his family also helped Michael and Stanka plant 3,700 pine trees on the Lara property but they later died during the drought as a result of being over fertilized. Mr Mojcec was not able to carry out much of the physical work because he was too sick.
On 20 December 2005, Mr Mojcec executed the will admitted to probate. This will was again prepared by Mr Sagaria.
On 9 June 2006, MMS (Vic) Pty Ltd (“MMS”) was registered. Mr Mojcec was the sole director and shareholder. On the same day, TGP Pty Ltd (“TGP”) was registered. Mr Postolov was the sole director and shareholder.
On 6 July 2006:
(a)the Mojcec Land Trust was established, Michael and Stanka were the trustees, specified beneficiaries, guardians and appointors;
(b)the Mojcec Business Trust was established, MMS was the trustee and Michael and Stanka were the specified beneficiaries, guardians and appointors;
(c)the Postolov Land Trust was established, Zoran and his wife Elizabeta were the trustees, specified beneficiaries, guardians and appointors; and
(d)the Postolov Business Trust was established, TGP was the trustee and Zoran and Elizabeta were the specified beneficiaries, guardians and appointors.
All of the Trust Deeds were prepared by Secombs.
On 24 July 2006, Mr Mojcec and Mr Postolov entered into two contracts for the purchase of a chicken farming business at 105 Tomahawk Creek Road, Pirron Yallock, near Colac. The land was purchased by Mr Mojcec, as trustee for the Mojcec Land Trust, and Mr Postolov, as trustee for the Postolov Land Trust, as tenants in common in equal shares. The purchase price was $800,000. The business was purchased by MMS, as trustee for the Mojcec Business Trust, and TGP, as trustee for the Postolov Business Trust. The purchase price was $1,700,000. Mr Postolov said that Mr Mojcec provided some of the money and they borrowed the rest, around $2 million. In October 2006, they increased their borrowings to enable the construction of more poultry sheds to be completed. The Spotswood property was used as security for the borrowings.
Also in October 2006, Mr Mojcec was diagnosed with prostate cancer. Dr Shirley Wong was Mr Mojcec’s treating oncologist between March 2007 and May 2009. He visited her in March and June 2007. Dr Wong said that he was asymptomatic and not complaining of any pain or urinary obstructive symptoms at this time. Nevertheless, Mr Mojcec’s illness meant that Mr Postolov had to carry out all of the physical work involved in the chicken farming business.
The disputed will was dated 11 August 2007. That was a Saturday. In her affidavit sworn on 22 November 2010, Mrs Pisko said that shortly before the will was executed, Mr Mojcec called her to say that he was coming to see her. He did not say when or why. Mrs Pisko lived at Merrylands on the outskirts of Sydney. On 11 August 2007, which Mrs Pisko thought was a Wednesday, Mr Mojcec arrived with a male friend, Marko Kujundzic, whom she did not know. In her evidence in Court, Mrs Pisko said that they had coffee and then lunch. Mr Mojcec then produced a document from a bag, which he said was “a testament, a will”. He signed it sitting at a coffee table. She and Mr Kujundzic signed as witnesses. Mrs Pisko said that it was clear that Mr Mojcec understood that he was executing his will but they did not discuss its contents. Mr Mojcec told her that he would like to leave the will with her. He said that when it was time, somebody would come and collect it. After this Mr Mojcec and Mr Kujundzic left. Mrs Pisko put the document in an empty stocking packet in a drawer in her bedside table. Mrs Pisko said that she did not tell anyone about the fact that she was holding Mr Mojcec’s will. Mrs Pisko was 85 in August 2007 and Mr Mojcec was 74. She said that she was a sick woman at this time.
Mr Kujundzic said in his affidavit sworn on 1 December 2010 that he was a retired estate agent. He said that he had been a friend of Mr Mojcec for approximately 20 years. They used to see each other every one or two months. However, in giving evidence he said that he did not remember a time when Mr Mojcec was so sick that he could not walk or walk only with difficulty with the aid of a stick. Although the question was put on the basis that this had occurred some time in 2006, it later became clear from Dr Wong’s evidence that it was more likely to have occurred in 2008. Mr Kujundzic said that he possibly did not see Mr Mojcec in the year or so before the trip to Sydney. Mr Kujundzic said that he was not asked to Mr Mojcec’s wedding and did not know that he was married. He had heard from Dragica that her brother had a girlfriend but not a wife. Mr Kujundzic said that he did not know Mr Babic.
Mr Kujundzic said that “shortly prior to August 2007” Mr Mojcec said to him that he was contemplating taking a trip to Sydney and would Mr Kujundzic do him a favour and go with him. In re-examination, he said that the request was made the day before they drove to Sydney. Mr Kujundzic said he was happy to go to Sydney as he had a nephew living there. Mr Mojcec came over to Mr Kujundzic’s house in his “blue car” and they discussed which car they would take. He said that they decided to travel in Mr Kujundzic’s car as it was more comfortable. Neither of them took overnight clothes. Initially Mr Mojcec did not say why he wanted to go to Sydney, but when they were driving he said that he wanted to visit his “Kuma”, Mrs Ana Pisko, who had been known to his family since the days of the former Yugoslavia.
Mr Kujundzic gave evidence that he left Melbourne very early in the morning “around six o’clock roughly” and arrived at Mrs Pisko’s house in the “late afternoon” – “before dark”. They stopped several times for petrol and for Mr Mojcec to go to the toilet. In his affidavit Mr Kujundzic had said that Mrs Pisko had “insisted that we stay for lunch”.
Mr Kujundzic said that discussions took place in Mrs Pisko’s kitchen about Mr Mojcec’s desire to leave his property to the next generation as he was greatly saddened by the loss of his only son, who had been murdered some years ago. Mrs Pisko said that it was very important that Mr Mojcec make a will. Mr Mojcec then produced a will from the inside pocket of his shirt. Mr Kujundzic gave evidence that Mr Mojcec said “I’ve decided to leave, to give will for my family”. He wanted them to sign something for him. Mr Kujundzic said that Mr Mojcec said that Ana was his Kuma and he, Marko, was like a brother to him. Both Mr Kujundzic and Mrs Pisko signed as witnesses. Mr Kujundzic said that the will was signed at the kitchen table. Later he said that it was signed at a low coffee table in the loungeroom and that they ate at the kitchen table. Mrs Pisko’s evidence was that “there was never a table in the kitchen”. It is possible that Mr Kujundzic was referring to a small table at the end of the dining room where Mrs Pisko had a special chair. Mr Kujundzic said that he did not know what happened to the will after it was signed. He thought Mr Mojcec left it at Mrs Pisko’s place. He did not hear any discussion about this. He may have been in the toilet.
After a couple of hours, Mr Mojcec and Mr Kujundzic left and drove back to Melbourne arriving about 24 to 26 hours after they left. On the way back Mr Mojcec was upset and cried. He said that the loss of his son greatly saddened him but he was happy that he had made a will and that “the next generation of his family were provided for”. He said that his son should have had it all but “I lost him, now it’s all left for my family”. Mr Kujundzic said that because Mr Mojcec was so upset he suggested staying overnight at his nephew’s place but Mr Mojcec insisted that they had to get back as Mr Mojcec had to go to work on the Monday. He said that his affidavit was in error when it stated that they had stayed one night with Mr Kujundzic’s nephew.
Neither Mrs Pisko nor Mr Kujundzic had any independent recollection of the date on which the will was signed. Mr Kujundzic said that he knew it was a Saturday in August 2007. He did not know who had written by hand “11th” and “August”.
Mrs Postolova disputed that her husband could have signed a will in Sydney on 11 August 2007. In her affidavit, she said that Zoran, Elizabeta and their two children came to stay with her and Michael on the afternoon of 10 August 2007. Elizabeta was about seven months pregnant. On the Saturday morning they all had breakfast together and then she and Michael looked after Zoran’s children while he and his wife went shopping for the new baby. She and Michael took the children to Yarraville Park, and when Zoran and Elizabeta returned from shopping, they had a barbeque lunch at the park. They spent the afternoon and evening together. Mrs Postolova also said that she and Michael were with Zoran and his family over the next few weekends. Mrs Postolova denied that she had made up the story about her family visiting on 11 August 2007. She denied that around this time Michael had gone away by himself or without her for a day or overnight. When it was put to her that Michael and Zoran had gone to the chicken farm on 14 August 2007, she agreed that sometimes they went without her.
In his affidavit, Mr Postolov also gave evidence that he and his family were with Michael and Stanka on 11 August 2007. He said that he and his wife went to Smith Street and to Highpoint Shopping Centre. He produced a Suncorp bank statement for the Postolov and Mojcec Business Trusts, which both he and Michael used, showing EFTPOS transactions in Fitzroy and Maribyrnong and at Target in Highpoint Shopping Centre on 11 August 2007. He gave similar evidence about the events of that day.
Mr Postolov also said that he and Michael went out together to buy building materials for the chicken farm on 12, 13 and 14 August 2007. He produced receipts evidencing two such purchases. Zoran said that he and Michael took the materials to the farm at Pirron Yallock on 14 August 2007.
In her affidavit sworn on 15 February 2012, Elizabeta Postolova gave similar evidence about the events of 10 and 11 August 2007. She also said that on the nights of 12 and 13 August 2007 she and her husband went out to visit friends and that Michael and Stanka stayed home and looked after the children.
The birthday of the second son of Zoran and Elizabeta was on 24 August 2007. Stanka referred to this event as helping her place her evidence that Michael remained in Melbourne on 11 August 2007. “I can recall two weeks prior to his birthday that the children were at our place in Spotswood”. On 3 October 2007, Elizabeta gave birth to Filip, their third son.
On 12 October 2007, Mr Mojcec visited Dr Wong at her consulting room in Footscray. Dr Wong said that he was still asymptomatic and not complaining of any pain.
In his affidavit sworn on 17 February 2012, Frank Cernaz gave evidence about matters which had only recently come to light as a result of Mr Postolov finding amongst the possessions of the deceased a letter from Mr Cernaz to Mr Mojcec dated 26 June 2008. At that time, Mr Cernaz was a solicitor practising on his own under the name of Frank J Sagaria & Associates, presumably having purchased the practice from the estate of the late Mr Sagaria. From that letter he was able to identify the relevant file which was then located in his firm’s archives on 2 February 2012.
Mr Cernaz had no independent recollection of meeting Mr Mojcec but the file revealed the following. On 16 June 2008, Mr Mojcec attended Mr Cernaz. As a result of that attendance, Mr Cernaz arranged for title searches of the Pirron Yallock and Spotswood properties. In a letter dated 19 June 2008, Mr Cernaz advised Mr Mojcec of the results of the searches. He noted that the Pirron Yallock property was “held by Mihajlo Mojcec and Zoranco Postolov as tenants in common in equal shares”. Accordingly, he advised Mr Mojcec that “you are able to deal with your share in this property under your Will”. Presumably, Mr Cernaz was not aware that Mr Mojcec held his interest in the Pirron Yallock property on trust for the Mojcec Land Trust. As the Spotswood property was held solely by Mr Mojcec, Mr Cernaz advised him that “you are able to deal with this property under your Will”. Mr Cernaz also pointed out that both properties were subject to mortgages. He then went on to refer to other related matters and concluded:
We look forward to our future appointment to obtain your further instructions in relation to your Will in light of the Title searches that have been undertaken and the above advice.
Mr Cernaz’s diary revealed appointments with “Mojcec” on 23 and 26 June 2008. The file also contained a draft will dated 23 June 2008 torn into several pieces. Mr Cernaz said that upon seeing this he recalled an occasion when a client tore up a draft will when instructing that he did not wish to proceed with the making of a new will and that he now believed that the client was the deceased. The draft will was reprinted from the computer records. In that will, Mr Mojcec left:
(a) his interest in the Pirron Yallock property to Zoran;
(b)the Spotswood property to Stanka, with a gift over to Zoran, and a further gift over to Zoran’s children; and
(c)“all money in any bank account” and the residue of his estate to his surviving brothers and sisters equally.
The letter dated 26 June 2008 from Mr Cernaz to Mr Mojcec, referred to previously, read as follows:
We refer to your attendance at this office this day and thank [sic] confirm that you no longer wish to proceed with the making of a new Will, but wish to retain your Will made 20 December 2005.
In that regard, we confirm our advice to you that the one-half interest in the property at 105 Tomahawk Creek Road, Pirron Yallock 3249 that you own as Tenant in common with ZORANCO POSTOLOV, will upon your death pass to your surviving brothers and sisters under Clause 4 of your said Will.
Should you wish to proceed with the making of a new Will in the future we will happily assist you. In the meantime, we take this opportunity to thank you for your instructions and enclose our Memorandum of Account for your attention.
Mr Cernaz said that he had met Mrs Postolova when she came to his office with Mr Babic prior to the commencement of this proceeding, but he did not believe that he had ever seen her before that occasion.
Mr Zivojin gave evidence that in July 2008 his uncle and Stanka came to visit him and his family in Wonga Beach, north of Port Douglas in Queensland. He said that they had driven from Melbourne in Mr Mojcec’s Holden station wagon. They stayed for two days. Mr Zivojin produced a photograph of he and his son with Mr Mojcec and Mrs Postolova taken during this visit. It shows a happy family group and does not suggest to me that Mr Mojcec regarded his wife as his “sponsored housekeeper”.
Mrs Postolova said that the trip was undertaken in a Honda Odyssey, not their other car a blue Holden Apollo. She said that they had never had a Holden station wagon.
From a health and comfort point of view, Mrs Postolova drew a distinction between the alleged rushed trip to Sydney in Mr Kujundzic’s car and the leisurely trip to Wonga Beach with plenty of stops in their own airconditioned and heated Honda.
Later in 2008, Mr Mojcec’s condition deteriorated. He had chemotherapy which was not successful and the cancer spread and interfered with his spinal cord which, for a time, left him unable to walk. Then he had radiotherapy which provided him with some relief, and he became able to walk using a stick. He spent most of the last 4½ months of his life in hospital. He died on 16 August 2009.
Mr Postolov said in his affidavit that in March 2009, just after he had seen Dr Wong, “Michael initiated a discussion with me about the future”. Mr Postolov said that Michael was very sick at the time and that he knew that his time was running out. He told Mr Postolov that he had “an anxiety that his siblings might try to take his money away from my mother, and he asked me to promise that I would take care of my mother”. Mr Postolov also said that Michael wanted him to take care of the Trust properties and to make sure that he provided his mother with sufficient money to cover all of her living expenses.
Ms Robinson said that about two or three weeks before her uncle died she rang him up from her home in Moree to ask whether there was anything she could do for him. He replied that “everything is in order”. In cross-examination, she agreed that her uncle had never told her that she was an executor in his will or that she was going to benefit under his will or where to find his will after he died. Then she said that he had said “my paperwork is in order”.
Mr Zivojin said that when he saw his uncle in hospital towards the end of his life, Michael told him in regards to his will that “you are all going to be OK, I’ve looked after you”. He agreed, however, that his uncle did not tell him that he was an executor in his will and did not tell him where to find his will after he died. Mrs Postolova disputed that her husband had said to Mr Zivojin when he was in hospital that he had made a will and that Martin’s family would be taken care of.
According to Ms Robinson and Ms Murphy very few people attended Mr Mojcec’s funeral. Mr Mojcec’s blood relatives (“the Mojcec family”) had expected Mrs Postolova to advise people but there was no death notice.
The Mojcec family were anxious to obtain any will of the deceased. There was a dispute about whether Mrs Postolova was asked any questions about a will after the funeral. After other enquiries were made, Ms Robinson and/or her mother, Anna Vukovic, contacted Frank J Sagaria & Associates. They were told to engage a solicitor with whom that firm would correspond. Mrs Vukovic then instructed the firm, Vincent Verduci & Associates. By a letter dated 28 August 2009, that firm of solicitors provided to her a copy of the December 2005 will. Ms Robinson gave evidence that it had taken her mother “a couple of months” to receive a copy of that will, whereas the letter showed that it had been provided only 12 days after his death. This exaggeration was typical of some of Ms Robinson’s evidence.
Having received a copy of the deceased’s December 2005 will, Ms Robinson attempted to make contact with Mr Babic and Ms Panova, but apparently they no longer lived at the respective addresses given in that will. She said that no one in the Mojcec family had heard of Omer Babic and they wanted to know what sort of relationship he had with the deceased and what was happening with respect to probate. As her mother knew Ms Panova’s mother, Ms Robinson was able to obtain Ms Panova’s mobile telephone number.
Ms Robinson contacted Ms Panova to arrange a meeting to discuss Michael’s last will. On 23 January 2010, Ms Robinson, her mother and her sister met Ms Panova at a café in Footscray. There was a dispute between Ms Robinson and Mrs Postolova about what was said at that meeting, which it is not necessary to resolve. It was agreed by both of them that Ms Panova had told the others that Mr Babic was Mrs Postolova’s brother-in-law and that she knew, from helping Michael with advice on superannuation and his finances generally, that he had very little money. It was also agreed that Ms Robinson told Ms Panova that her mother had received advice from a solicitor, Vincent Verduci, who had done a title search, that Mr Mojcec’s siblings (there were three alive at his death – Victorija, Alojz and Anna) would inherit Michael’s half of the chicken farm. One issue that was disputed was whether Ms Robinson had also told Ms Panova that the solicitor had said that her mother could not proceed with any legal action and that Ms Robinson had then said that the will was not “fair” and “We will find a way”, as deposed to by Ms Panova in her affidavit sworn on 27 February 2012. Ms Robinson denied that she had said these things. She said that she had described the December 2005 will as “not right” because it was not how her uncle had said he had “left it”. Whilst at first the “finding a way” remark appeared to have sinister overtones, this was clarified by Ms Panova, in answer to a question by me, when she said that she understood from this remark that Ms Robinson was saying that they would chase up the executor and find a way to receive their share of the chicken farm.
The other matter to note from Ms Panova’s evidence was that she said that, many years ago, at Mr Mojcec’s request, she had purchased a will kit and filled it in on his instructions. She said that she recalled the contents of that will well. All his assets were left to his wife, apart from a Healesville property which he wanted to leave to Ms Panova. She told him that it said on the will kit that as the executor she could not be a beneficiary. Therefore, Mr Mojcec said that he would leave that property to all of his nieces and nephews. He said that there would be enough from the sale of that property for each of them ”to buy themselves a little car”. After the will was executed, Ms Panova took the will to somewhere in the city, possibly Flinders Lane, but she could not remember. Later she said that she thought she took it to somewhere in William Street, to one of the courts.
Ms Robinson said that Ms Panova had mentioned that there was another will which Mr Mojcec had given to her in a yellow envelope and told her to deliver it to a solicitor in Flinders Lane near where she worked. Ms Panova could not remember the name of the solicitor. Despite strenuous efforts by Ms Robinson no such will could be located. She also tried several times to contact Ms Panova to ask her to go to the building where she had delivered the will so that she would know the address, but Ms Panova did not answer the calls.
Ms Panova said that what she told Ms Robinson was that she took Michael and Stanka to see a solicitor to make a will and that she drove them there and dropped them off in Flinders Lane.
Neither Mrs Anna Vukovic nor Ms Robinson’s sister were called to give evidence despite being present at the meeting with Ms Panova.
Ms Robinson agreed in cross-examination that in January 2010 she had asked an online solicitor advice service the following three questions:
1.My uncle has died in August 2009 and before he has died he said that he had made a pre nuptial agreement with his estranged wife around 2004. Yet on the following day of his death the wife said that she has a will that was made by the uncle in 2005. Can you tell me, does a pre nuptial agreement have to be registered in a particular building because there is foul play here and can this agreement override any will made after? The uncle is worth a few millions and she knew this from the start. If a pre nuptial agreement does not have to be registered and only be held in a solicitor’s office which way would you suggest for us to find this agreement because no one really knows which solicitor he used. We did find out that there are a number of wills made by him prior to the one his wife has. We are dead certain there would be another will made around early 2009 but she will not say anything to give anyone a lead. I thank you.
2We have been to solicitors and changed three times already. In December issue of the journal Law there was an ad placed asking if any solicitor is holding a late will. We have phoned nearly all solicitors in the vicinity of where he lives and this is how we found out about his other wills prior to 2005. My uncle lived in Spotswood, Melbourne. His name was Mihajlo Mojcec.
3I wasn’t informative enough. My uncle had many solicitors and no one knew when or where or even who married them He only signed for her to get her visa in Australia. He didn’t really know her. The will that she has we found out the executor is her brother-in-law who hardly knew the uncle and the uncle was worth over $22 million. She will not talk to us. She did not want the death notice to go in the papers. We have the copy of the will she produced but, for goodness sake, you would believe to make a pre nuptial agreement there must be somewhere it must be lodged so it can easily be found, especially in a case like this when someone passes away. Would you believe that the Federal Police should get involved? She and her associates are a nasty piece group [sic], very smart but dangerous. There was an ex policeman at the funeral who knew the uncle since a baby and said he was trying to sniff a few things out and on his way back home to Queensland he received a call from a stolen mobile saying stay out of Michael’s affairs or else.
Objection was taken to Ms Robinson being cross-examined about these questions. It was submitted that they were covered by legal professional privilege. As the questions were posted online available for all the world to search for and read, just as Mrs Postolova’s solicitor apparently did, I considered that any legal professional privilege had been waived.[1] Whether or not it had been, eventually it was stated by the plaintiffs’ counsel that there was no longer any objection to these questions being part of the evidence in this case and that privilege was waived.
[1]Switchcorp Pty Ltd v Multimedia Ltd [2005] VSC 425 (Whelan J).
The only relevance of what was said in these questions, in my opinion, is the suggestion that Mr Mojcec was “worth over $22 million”; that Mrs Postolova was described as Mr Mojcec’s “estranged wife” by which Ms Robinson said she meant that he had only married her so she could get her visa to stay in Australia; and what it tells me about the attitude of Ms Robinson and her family to Mrs Postolova and Mr Babic – “foul play”, “nasty piece group”, and “brother-in-law … hardly knew the uncle”.
Although Ms Robinson said that the figure of $22 million had come from a friend of Mr Mojcec, she had previously said in cross-examination that everyone, including herself, knew that her uncle was worth millions. She also said in her first question that her uncle was “worth a few millions”.
Solicitors acting for Mr Babic and for Mrs Vukovic lodged advertisements seeking information about any later wills of the deceased. There was correspondence between them about the lack of responses. Despite this, no caveat was lodged. Thus, the grant of probate was made on 30 August 2010.
Mr Kujundzic said that in about late 2008 he had moved to Moe. He gave evidence that in early September 2010 he visited Dianne Murphy and told her that he intended to visit Mr Mojcec. To his great surprise she told him that he had passed away about a year before. Mr Kujundzic told Ms Murphy that he had been a witness to a will and that she should make contact with Mrs Pisko. Mr Kujundzic said that he knew Dianne Murphy because her mother, Dragica, had been friendly with his sister. They were both Seventh Day Adventists as was he. He said that he would not regard himself as a friend of Ms Murphy’s family, although he did visit her mother from time to time when he lived in Point Cook.
Ms Murphy said in her affidavit sworn on 20 February 2012 that she had known Mr Kujundzic for much of her life. “He was a family friend and an associate of my mother’s”. She confirmed that he visited her in early September 2010 and that the conversation took place as he described.
Ms Murphy also said in her affidavit that Ana Pisko was “a close family friend … She was very close to all of our family including my uncle, and respected by us all”.
Ms Murphy agreed that it was just “by chance” that Mr Kujundzic came to visit her in 2010. She said that she had not seen him for “two or three years” before that and she had not spoken to him “for years”.
Ms Murphy rang Mrs Pisko and said that she was coming to visit her. Mrs Pisko said that this was the first time she learned that Mr Mojcec had died. Mrs Pisko also said that she told Ms Murphy on the telephone that she had something for her, but did not say at that time that it was a will. However, Ms Murphy gave evidence that when she rang Mrs Pisko she asked her whether she had a will and that Mrs Pisko said to come up and collect the will. On 21 September 2010, Ms Murphy flew to Sydney. She said that she collected the original of the August 2007 will from Mrs Pisko, who told her that she had not produced the will before because she was unaware that Michael had died. Ms Murphy exhibited an airline boarding pass, which proves that she flew to Sydney on that day but not that she collected the will from Mrs Pisko.
On 10 November 2010, the plaintiffs applied for revocation of the grant of probate of the December 2005 will and for a grant of probate of the August 2007 will.
Consideration of the Issues
The only reason advanced by the plaintiffs for revocation of the grant of probate of the December 2005 will was that there was a later valid will of the deceased, the August 2007 will. The question for determination is, therefore, whether the alleged later will is one that should be admitted to probate. In McKinnon v Voigt,[2] Tadgell JA, with whom Ormiston JA, on this point, and Phillips JA agreed, stated, in his own words, “the following established principles of law”:
(a) the onus of proof lies in every case upon the party propounding a will; and that party must satisfy the conscience of the court that the instrument propounded is the last will of a free and capable testator;[3] (b) where circumstances excite the suspicion of the court it is for those who propound the will to remove the suspicion and to prove affirmatively that the deceased knew and approved the contents of the document;[4] and (c) it is only when any such suspicion is removed that the onus is thrown on a person resisting a grant to the propounder to prove facts relied on to displace the prima facie case in favour of the propounder[5].[6]
[2][1998] 3 VR 543.
[3]Barry v Butlin (1838) 2 Moo PCC 480, 482; 12 ER 1089, 1090 (Parke B).
[4]Re Breen [1927] VLR 164.
[5]Tyrrell v Painton [1894] P 151.
[6][1998] 3 VR 543, 551.
His Honour later said:
The case of Tyrrell v Painton illustrates very well the point that, where there is cast upon a propounded will a well-founded suspicion that it might not represent the mind and will of the person whose will it is represented to be, no grant will be made before the circumstances which raise the suspicion are explained so as to dispel it. The principle is the same whatever be the facts and circumstances which create the suspicion. It must be so whether the objection is, on the one hand, that the document, although executed by the deceased person, does not for some reason represent his mind and will or whether it is, on the other hand, that the document was not executed by the deceased at all.[7]
[7][1998] 3 VR 543, 556.
Mr Boaden of counsel, who appeared for the second defendant, submitted that it was “undeniable” that the circumstances surrounding the alleged August 2007 will were suspicious and that the plaintiffs had failed to discharge the onus of removing those suspicions so that the Court could not be satisfied that it represented the mind and will of Mr Mojcec. He advanced a number of reasons as the basis for this submission.
The first reason was that the evidence did not show that the August 2007 will was read to or by Mr Mojcec when he allegedly signed the document at the home of Mrs Pisko or that he had ever read the document. Thus, it was submitted that there was no evidence that he knew or approved its contents and intended it to be his will. Mr Boaden referred to the comment by EM Heenan J in Scarpuzza v Scarpuzza[8] that:
With respect, there is great experience and wisdom in the observations in Hutley[9] at [31.2] and [31.28] that the testator should always be asked to state in the presence of both witnesses that he or she has read over the will, that he or she knows and approves its contents, and that he or she intends the documents to be his or her will.
[8][2011] WASC 65, [40].
[9]Hutley’s Australian Wills Precedents (6th ed, 2004).
Whilst this submission correctly summarised the state of the evidence, including the rather equivocal statements allegedly made by Mr Mojcec about the contents of the will he had just signed, I would have been prepared to conclude that Mr Mojcec did know and approve the contents of the August 2007 will, if I had found the evidence of Mrs Pisko and Mr Kujundzic credible and if there had been no other suspicious circumstances. After all, a testator does not normally produce a proposed will and ask people to witness his or her signature without first reading and approving the contents of the document to be signed.
The second reason was that the contents of the August 2007 will showed that Mr Mojcec did not know and approve the document and intend it to operate as his will. Mr Boaden submitted that the contents of the alleged last will were “redolent with errors and inaccuracies and inexplicable omissions”, and that if Mr Mojcec had been aware of them then it was improbable that he would have signed the will without correcting them.
Mr Boaden referred to the following:
(a)Mr Mojcec is described in clause 1 as a “semi-retires single man”. Apart from the typographical error, it was unclear to me whether it was inaccurate to describe Mr Mojcec as “semi-retired”. However, it is quite clear that it was an error to describe him as a “single man”, even if his marriage had been merely a marriage of convenience.
(b)In clause 5 the address of the property at Pirron Yallock was said to be “107 Tomahawk Creek Road”, whereas the correct address was 105 Tomahawk Creek Road, as the contract for its purchase showed.
(c)Also in clause 5, Mrs Postolova is twice referred to as “my sponsored housekeeper Stanka Postolov”. She was not his “sponsored housekeeper”, although this may have been how the Mojcec family regarded her. Further, the appellation “Stanka Postolov”, was inaccurate in two respects. The wills which were prepared on Mr Mojcec’s instructions named her, accurately, as “Postolova Stanka”.
(d)The statement in clause 5 that the Pirron Yallock property was placed in the names of Mr Mojcec and Mr Postolov “at the request of” Mrs Postolova “for their families’ absolute future” was extraordinary. There was no evidence to support this claim. Moreover, as Mr Boaden submitted, even if such a request had been made, it would be remarkable if Mr Mojcec had acceded to it when it came from someone who was described in the same document as merely his “sponsored housekeeper”.
(e)The August 2007 will made no provision for Mrs Postolova, the testator’s wife. The option given to her to buy Mr Mojcec’s interest in the chicken farm “at market price” was not the sort of “benefit” that one would expect a husband to leave for his wife.
There were other typographical or grammatical errors appearing in clause 6 – “after all my shares of business costs”, “the residue of my estate to be dispersed and distributed to my executors as proceeds”. Unlike the errors referred to above, these errors were probably not ones which Mr Mojcec would necessarily be expected to have noticed and corrected.
The third reason advanced by counsel for the second defendant was that the alleged 2007 will was inconsistent with the pattern of Mr Mojcec’s wills both before and after that alleged will. Mr Boaden compared the provisions of the wills signed by Mr Mojcec in 2002, 2003 and 2005 and the draft will of 2008 (“the other wills”) with those of the alleged 2007 will. In my opinion, there is substance in the following points resulting from that comparison:
(a)All of the other wills were prepared by the same firm of solicitors. The alleged 2007 will was not.
(b)All of the other wills named Mr Babic as executor, with Ms Panova as substitute executor. The alleged 2007 will did not.
(c)All of the other wills gave the Spotswood property, the matrimonial home, to Mrs Postolova. The alleged 2007 will did not.
(d)All of the other wills (or at least the 2002, 2003 and 2005 signed wills) became progressively more generous to Mrs Postolova and her son and consequentially less generous to the members of the Mojcec family (Mr Mojcec’s siblings and his nephews and nieces). The alleged 2007 will changed direction completely by leaving the whole estate to the Mojcec family. I note that the draft will of 2008 made no mention of the property at Lara and therefore it would have formed part of the residue. However, I agree with Mr Boaden’s submission that this probably reflects the fact that Mr Mojcec did not mention it when discussing a new will with Mr Cernaz and that if he had the probabilities are that the draft would have given it to Mrs Postolova.
(e)The residuary estate, when dealt with, always went to members of the Mojcec family, including without exception Mr Mojcec’s siblings. The alleged 2007 will provided for the first time that the siblings were to receive only pecuniary legacies and were not to be the beneficiaries of the residue on their own or to join with the nephews and nieces in sharing the residue.
(f)Each of the 2002, 2003, 2005 wills was executed under the supervision of Mr Mojcec’s solicitor. The alleged 2007 will was not. The draft will of 2008 was obviously never signed.
Two further matters should be mentioned. First, the 1998 will was obviously signed before Mr Mojcec’s marriage to Mrs Postolova. Therefore it was not included in the comparative exercise. It is worth noting, however, that this will was also prepared by solicitors and executed under their supervision. Secondly, there was the will kit form referred to by Ms Panova. It was also not included in the comparative exercise. This makes sense if this will kit form was completed shortly after the marriage and before the 2002 will was signed, as Ms Panova’s evidence seemed to suggest. If it had been included, there would have been differences and similarities to the other wills. It was not prepared by solicitors or executed under their supervision. But apparently it did name Ms Panova as an executor and it left the matrimonial home and other assets, apart from the Healesville property, to Mrs Postolova. Neither of these matters, in my opinion, detracts from the points made on behalf of the second defendant as a result of the comparative exercise.
The fourth reason is that there is no evidence about the preparation of the August 2007 will. Mr Boaden submitted that, not only had it not been prepared by Mr Mojcec, it had not been prepared by a lawyer. There were too many typographical errors or unlawyerlike language such as those referred to above, as well as the reference to granting the executors authority “upon trust given to them by the powers under Australian legislation”. Rather it would appear to have been prepared by a layman using other wills or will forms as precedent. This is a suspicious circumstance. Was the person who drafted the will someone who stood to gain under its provisions?
The fifth reason advanced by counsel for the second defendant was that the evidence about the execution of the alleged August 2007 will was inherently improbable. On the other hand, Mr Arthur of counsel, who appeared for the plaintiffs, submitted that this evidence was “compelling”. He submitted that both Mrs Pisko and Mr Kujundzic gave convincing evidence and that their accounts were credible. I do not agree.
First, the suggestion that Mr Mojcec would drive all the way to Sydney to sign his will was not credible. There is no sensible reason why, if Mr Mojcec had arranged for a new will to be prepared, he should want or need to travel to Sydney to sign it in front of Mrs Pisko. If Mr Mojcec wanted to keep the existence of this new will from Mrs Postolova, then surely it would have been easier to arrange its execution with his blood relatives in Melbourne, leaving the will with them, rather than having to explain to his wife his absence for over a day so that he could make the rushed trip to Sydney. It was said that Mrs Pisko was his “Kuma” and close friend and yet none of the Mojcec family thought to contact her about his death, even though she did not attend his funeral. Even on Mrs Pisko’s own evidence, her relationship with Michael had not been that close since the death of Dragica, his sister and her friend, in 2002.
Second, Mr Kujundzic’s evidence about the trip to Sydney was certainly not “compelling”. He said that he agreed to go with his friend because he had a nephew living in Sydney. In his affidavit, Mr Kujundzic said that they stayed overnight at the nephew’s place. A logical thing to do one would think. Yet in giving evidence Mr Kujundzic said that neither he nor Mr Mojcec took any overnight clothes. Moreover, he contradicted his affidavit and said that he had only suggested that they stay with the nephew when Mr Mojcec became so upset after leaving Mrs Pisko’s place. Thus, according to Mr Kujundzic’s evidence in Court, initially there was no intention to visit the nephew. Instead, what was intended and what he said happened was that they drove to Sydney and back to Melbourne in the space of 24 to 26 hours without any breaks for sleep! An arduous task for fit young men let alone men in their seventies, one of whom was suffering from prostate cancer.
Third, there seemed to be no reason why Mr Kujundzic should have been involved in any event. Whilst he may have once been a friend of Mr Mojcec, the frequency of their contact had clearly reduced, perhaps because Mr Mojcec was more interested in activities with his wife and his step-son and his family. Mr Kujundzic conceded that he may not have seen Mr Mojcec from the start of 2006 until August 2007. Yet, apparently out of the blue, Mr Mojcec contacted Mr Kujundzic to ask him whether he would drive him to Sydney, without giving any reason for the trip.
Fourth, there were contradictions in, and between, the evidence of Mrs Pisko and Mr Kujundzic concerning the signing of the will. Whilst Mr Arthur accepted that there were “some minor inconsistencies” in their accounts, he submitted that this went to emphasise their veracity because if the stories were too alike this might be a basis for saying that their stories were concocted. He also pointed out that they had no reason to make up their evidence because neither received any benefit under the August 2007 will. Whilst there is some truth in this, the inconsistencies were not minor. Mr Kujundzic contradicted himself by giving evidence that it was signed at the table in the kitchen (Mrs Pisko said that there was no such table) and then at the coffee table. Mrs Pisko and Mr Kujundzic also gave conflicting evidence about the time of day the will was signed (lunchtime as against late afternoon) and from where Mr Mojcec produced the will (a bag compared with from an inner pocket in his shirt).
Finally, I consider that the plaintiffs’ convoluted case about the circumstances in which the August 2007 will was signed can only be truthful if one accepts that a number of unlikely coincidences actually occurred. It was just a coincidence that Mr Mojcec wanted Mrs Pisko to witness his will even though there had been very little contact between them in the last five years. Similarly, it was just a coincidence that Mr Mojcec felt able to ask Mr Kujundzic to drive him to Sydney and to witness his will even though there had been very little contact between them in recent years. It was just a coincidence that both Mrs Pisko and Mr Kujundzic were allegedly good friends of Mr Mojcec’s sister, Dragica. Adding to the suspicion are the later coincidences. It was just a coincidence that no one told Mrs Pisko, and just a coincidence that no one told Mr Kujundzic, about Mr Mojcec’s death until September 2010. This was despite the alleged close friendship each of them had with Mr Mojcec. It was just a coincidence that Mr Kujundzic happened to travel up from Moe and drop in on Ms Murphy in September 2010, and to mention in their conversation that he was then going to visit Mr Mojcec. Thus it was that the existence of the alleged last will did not become known to the plaintiffs until after probate of the December 2005 will had been granted. This chronology of coincidences was essential if the delay in producing the August 2007 will was to be explained. Finally, it was just a coincidence that Ms Robinson and her relatives at one time believed that Mr Mojcec was worth “millions”, if not $22 million. This perhaps explains the rather frenetic attempts to find a will later in time to the December 2005 will which was considered to be the product of “foul play”.
The result is that I cannot accept the evidence of Mrs Pisko and Mr Kujundzic about the events surrounding the alleged signing by Mr Mojcec of the August 2007 will and how its existence came to be known by the Mojcec family.
There is also the evidence given by Mrs Postolova and her son and daughter-in-law that Mr Mojcec was with them in Melbourne on 11 August 2007. Mr Boaden submitted that they were all “unshaken” in that evidence. On the other hand, Mr Arthur submitted that this evidence was put forward late, by witnesses who stood to gain a great deal if probate of the December 2005 will was maintained, and that there was no documentary evidence establishing that Mr Mojcec was with them on the day in question.
In my opinion, the only affidavit that could be described as late was Elizabeta’s. I do not agree that it would be expected that Mr Babic would refer to the other witnesses’ evidence. He had no personal knowledge of the events of that day. Secondly, Mr Arthur’s criticism about the second defendant’s witnesses having a financial interest in the outcome applies equally to the plaintiffs. Thirdly, whilst it is true that the produced receipts do not prove that Mr Mojcec was in Melbourne between 10 and 14 August 2007, they are consistent with the second defendant’s case and might have assisted the recall of the past events, along with the imminent birthday of the second son and Elizabeta’s pregnancy. Nevertheless, in reaching my conclusion in this case I have not placed much weight on the evidence given by Mrs Postolova and her son and daughter-in-law on this particular point because, although I found them to be more credible witnesses than the plaintiffs’ witnesses, I am not convinced that they can be so sure in 2012 about what they all did on 11 August 2007.
The next reason advanced by Mr Boaden was that the evidence about the storage and safekeeping of the August 2007 will was not credible. Even if Mr Mojcec for some sentimental reason wanted Mrs Pisko to witness his will, there was no rational reason to leave it with her. If he was concerned that Mrs Postolova would find the will if he kept it, he could have given it to Mr Kujundzic to give to one of his relatives in Melbourne, such as his brother, one of his sisters or his niece Ms Murphy, or he could have done so himself without alerting his wife to its existence. Of course, those points assume that Mr Mojcec and his wife were not happily married, which is not my conclusion from the evidence.
In my opinion, one is entitled to think that, as an intelligent man, Mr Mojcec would understand that by leaving the only copy of his will with a frail older woman in another city there was a real risk that it would never come to light because it might be unwittingly disposed of if she pre-deceased him. That risk could have been substantially lessened if Mr Mojcec had told any member of the Mojcec family, in particular the executors named therein, of the whereabouts of this last will. Yet despite allegedly talking to both Mr Zivojin and Ms Robinson about wills and what would happen after his death, Mr Mojcec did not mention the August 2007 will to them. He did not tell them about its existence or that they were named as executors, or where it was to be found. This is a significant omission given that, according to Mrs Pisko, he told her that somebody would come to collect the will, not that she should contact his proposed executors if she learned that he had died. This omission was compounded when Mr Mojcec did not tell Mr Cernaz in June 2008 that the December 2005 will had been superseded by the August 2007 will, which one would expect he would have if the plaintiffs’ case were true. There was an obvious risk that, absent this information, Mr Cernaz would, as in fact he did, seek to have the December 2005 will admitted to probate.
The 2008 episode involving the visit to Mr Cernaz and the drawing up of a new will and later tearing it up before it was signed is important. It shows that Mr Mojcec was again thinking about how his estate should be dealt with in his will. It is very significant, in my opinion, that Mr Mojcec had apparently told Mr Cernaz that his last will was the December 2005 will and that there was no mention of the August 2007 will. If Mr Mojcec had in fact travelled to Sydney, signed a will and left it with Mrs Pisko, I find it very difficult to accept that in these circumstances he would not have mentioned that fact to Mr Cernaz. There is no reason to think that Mr Cernaz was mistaken when he wrote in his letter of 26 June 2008 to Mr Mojcec confirming that “you … wish to retain your Will made 20 December 2005”.
A final reason giving rise to suspicions about whether Mr Mojcec knew and approved the contents of the August 2007 will was the conflicting evidence from two handwriting or forensic document examiners concerning the Mihajlo Mojcec signature on that document. It was accepted that both are experts in this area of specialist knowledge. The first expert, Trevor Joyce, was initially engaged by Mr Babic’s solicitors. However, because of the conclusion he reached about the August 2007 last will Mr Joyce was in fact called by the plaintiffs. The second expert, Neil Holland, was called by the second defendant.
Mr Joyce had prepared two reports – the first dated 10 March 2011, which was prepared for the first defendant’s solicitors, and the second dated 23 February 2012, which was prepared for the plaintiffs’ solicitors. Mr Joyce’s opinion in both reports was that it was “highly probable” that Mihajlo Mojcec was the writer of the questioned Mihajlo Mojcec signature on the August 2007 will. In Mr Joyce’s reporting terminology, “highly probable” was said to be “an opinion of near certainty” but that “an underlying limitation to the examination” had been identified.
Mr Holland’s report was dated 6 February 2012. It was Mr Holland’s opinion that the writer of the Mihajlo Mojcec signature on the August 2007 will was not the same writer of the signatures on the known samples that he had examined. In Mr Holland’s reporting terminology, this conclusion was used when the expert was satisfied that the differences between the questioned signature and the specimen signatures were sufficient and significant enough to exclude the writer of the questioned signature.
Mr Boaden submitted that Mr Holland’s evidence was highly persuasive. Nevertheless, he submitted that in circumstances where two experienced and respected experts have expressed diametrically opposed views, it was not possible to conclude with complete assurance which expert was right and which was wrong. Mr Baker of counsel, who appeared for the first defendant, submitted that, based on Mr Holland’s clear evidence, the Court could certainly find that the signature on the August 2007 will was not that of the deceased.
For present purposes, it is sufficient if I state that, to my mind, the expert evidence did not remove the suspicions otherwise surrounding the preparation and execution of the August 2007 will. I am, therefore, not satisfied that Mr Mojcec did know and approve the contents of that document. Accordingly, probate of the December 2005 will should not be revoked and probate granted instead to the August 2007 will.
The Handwriting Evidence
However, in case I am wrong in reaching the above conclusion, I propose to examine the handwriting evidence in greater detail to see whether the second defendant was correct in asserting that the August 2007 will was not signed by Mr Mojcec.
Mr Joyce’s first report was based on his examination of eight documents said to contain Mr Mojcec’s signature. In addition to the original August 2007 will (Q1), he was provided with:
(a) the original of the will dated 23 July 2002 (K2);
(b) the original of the will dated 20 May 2003 (K3);
(c) a copy of the will dated 20 December 2005 (K4);
(d)an original Australian passport in the name of Mihajlo Mojcec dated 26 May 2008 (K5);
(e)two original Victorian driver’s licences in the name of Mihajlo Mojcec each bearing an expiry date of 6 December 2015[10] (K6 and K7) ; and
(f) the original of the will dated 4 June 1998 (K8).
[10]It was assumed by all concerned, possibly incorrectly, that this meant that the signatures were written in late 2005.
Surprisingly, Mr Joyce thereafter referred in his first report to the passport (K5) as being dated 26 May 2005 (see, for example, the Document Summary in Appendix C to his report) which led him to state that the known Mihajlo Mojcec signatures “purport to have been written in the period of June 1998 to December 2005” (par 6.1). This error was corrected by Mr Joyce in his second report.
Mr Joyce’s second report included reference to two further documents said to contain Mr Mojcec’s signature, which had been provided by the second defendant’s solicitors to Mr Holland. They were:
(a)an electronic reproduction of a document headed “Minutes of Meeting of Trustee of the Mocjec [sic] Land Trust”, dated 13 May 2008 (K9); and
(b)an electronic reproduction of page 18 of a Deed signed by Mikail Manov, Zoranco Postolov and Elizabeta Postolova, with Mr Mojcec’s signature purportedly appearing as the witness to two of those signatures (K10). Although this document was not dated, Mr Joyce assumed that it was written in or around 2006, “due to the footer file directory … ’06-1726’.”
In his first report Mr Joyce said that it was assumed that the authorship of the Mihajlo Mojcec signatures on the known documents K2 to K8 was not in dispute and that, accordingly, he assumed that these signatures were in fact written by Mr Mojcec.
However, prior to his second report, he was requested to examine the signatures of the testator and of the two witnesses, Frank Sagaria and Filippa Buccheri, on the 2002, 2003 and 2005 wills (K2, K3 and K4). In his second report Mr Joyce concluded (an opinion of certainty) that Mr Mojcec was the writer of Mihajlo Mojcec signatures on those wills. He also concluded that the same writer had written all three Frank Sagaria signatures but due to a lack of comparison material he was unable to identify if these were genuine signatures of that writer. He reached the same conclusion about the three Filippa Buccheri signatures. These were hardly surprising conclusions.
In his reports and his oral evidence, Mr Joyce explained the process he used to examine and compare the signatures and detailed his observations. He said that both the known signature and the questioned signature utilised a similar pictorial model for formation. His examination revealed no evidence of tracing or of a copy-and-paste signature. The questioned signature had been written freehand. Mr Joyce listed the following features of the signatures on which he based his conclusion of common authorship. They were:
(a)The formation of the upper case “M” at the start of each name, including the tented arching construction.
(b)The construction of the “aj” and “oj” formations, including the connection and termination points and use of long stem feature.
(c)The method of construction of the “cec” portion of the signature and observations of kinking of the stroke line.
(d) His observations of angularity, proportions and spatial habits.
Mr Joyce said in his second report that it remained his opinion that it was highly probable that Mr Mojcec was the writer of the August 2007 will. He added the following commentary:
This is an opinion supporting common authorship, however a limitation remains in the lack of stable signature formation model. The provision of K9 in addition to the passport K5 provides further support for the decline in apparent motor control post-2006 of the known signature exemplars of this writer. It is not known the impact of age, ill-health or other environmental factors on this writer at the purported date of signing.
Accordingly, a more conclusive opinion cannot be formulated until further known signatures of this writer are examined that were written in close proximity to August 2007.
The difficulty I had with Mr Joyce’s evidence was that it seemed to me, with respect, that whilst there were similarities between the questioned signature and some of the known ones on particular points identified by Mr Joyce, equally there were differences in some of the known ones on the same point. For example, Mr Joyce said the start of the second part or arch of the upper case “M” usually occurred about two-thirds of the way up the finish of the first part or arch. Yet the “M” in “Mihajlo” in K4 and the first signature in K8 clearly did not match this pattern. Mr Joyce put this down to normal variations. Another example was that Mr Joyce said that the construction of the “aj” and the “oj” for formations was common in the way in which the letters were connected. Yet, as Mr Joyce himself acknowledged, the “oj” in K10 and the “aj” and the “oj” in K9 did not match this pattern. A third example was Mr Joyce’s evidence that the fact that the “cec” in the questioned signature appeared to read “eee” was common to the known signatures. This did not appear to me to be the case with two of the signatures on K8 or the signatures on K7 or K9. Finally, Mr Joyce gave evidence that the diacritic or dot of the “j” in “Mihajlo” was placed in the known signatures not above the “j” but above the void between the “j” and the “lo”. However, it seems to me that in the questioned signature it would be more accurate to say that the diacritic or dot appears above the “j” rather than above the void.
In making these comments I am not suggesting that I have any expertise in this area. I am simply trying to explain why at the conclusion of Mr Joyce’s evidence I did not feel persuaded by his conclusion that it was “highly probable” that Mr Mojcec had signed the August 2007 will.
In his report, Mr Holland said that he was first provided with copies of seven documents. Using Mr Joyce’s numbering they were Q1, K4, K6, K7, K8, K9 and K10. He was subsequently provided with originals of the last five, and he inspected originals of the first two, of these documents. Mr Holland said that his examination of the signatures and handwriting involved “a comparison process” designed to reveal the writing characteristics of the various signatures and handwriting which would allow the examiner to provide an opinion based on these characteristics as to whether or not they have been written by the same or a different writer. He also found no traits that would show that the questioned signature had been traced.
Mr Holland set out his conclusion in his report in the following terms:
(a)The signature standards of “Mihajlo Mojcec” show a signature style that is common to the questioned signature item 1, but the questioned signature shows proportion differences and does not show the same skill level as observed for the standard signatures.
(b)The dissimilarities observed between the questioned signature and the signature standards of “Mihajlo Mojcec” are significant and are of such a nature, that it is my opinion that the writer of the “Mihajlo Mojcec” signature standards did not write the questioned “Mihajlo Mojcec” signature on the “WILL” item 1.
It was only in his oral evidence that Mr Holland gave any particulars of the dissimilarities he had referred to in a general way in his report. He said that the spatial arrangement similarities and proportion similarities he had identified for the signature standards did not hold for the questioned signature. It was not the result of natural variation. Mr Holland said that these spatial and proportion points were important as they were not as easy as the individual letters for a forger to replicate. He considered Mr Mojcec’s signature to be a simple one because “a lot of the letter forms are individual letter forms”. Some of the dissimilarities he identified were as follows:
(a)In the questioned signature the top of the “h” in “Mihajlo” was below the top of the “M”, whereas in his known signatures the top of the “h” was higher than the top of the “M”.
(b)In the questioned signature the top of the “l” in “Mihajlo” was level with the top of the “h”, whereas in his known signatures the top of the “l” was higher than the top of the “h”.
(c)In the questioned signature the top of the “M” in “Mojcec” was higher than the top of the “l” in “Mihajlo”, whereas in his known signatures the top of the “M” was below the top of the “l”.
(d)In the questioned signature the bottom points of the three stems of each upper case “M” descended to the right or was level, whereas in virtually all of the known signatures the bottom points of the three stems of the upper case “M” ascended to the right.
(e)The breadth of “aj” and “oj” formations was far greater in the questioned signature than in his known signatures.
(f)In the questioned signature the diacritic for the “j” was lower than the diacritic for the “j” in “Mihajlo”, whereas in the known signatures the reverse was the case.
Mr Holland illustrated his points by drawing lines on the various signatures. This showed in a vivid and compelling way how the structure of the questioned signature differed markedly from the known signatures he had examined. It was a very persuasive aspect of his evidence.
Mr Arthur submitted that Mr Holland’s evidence was to be discounted because he had not particularised these alleged dissimilarities in his written report. Clearly they should have been.[11] Mr Holland’s explanation was that normally they would have been included in the report, but that “there were circumstances that were preventing me at the time … [from] getting the time to do that”. He does seem to have been under some time pressure. He was initially instructed on 18 January, received some original documents on 27 January, inspected the critical original document and the original of the December 2005 will on 3 February, and completed his report on 6 February 2012.
[11]See Supreme Court (General Civil Procedure) Rules 2005, Form 44A, para 3(d) and (e)(i).
Because of the lack of detail in the report I gave the plaintiffs’ counsel the opportunity to confer with Mr Joyce, after Mr Holland had given his evidence in chief, and before cross-examining him. Mr Joyce had remained in court to hear Mr Holland’s evidence. I do not believe the cross-examination was hampered. Application could always have been made to recall Mr Joyce for him to give his views about Mr Holland’s evidence, if that had been considered necessary.
Mr Arthur also criticised the way in which Mr Holland had been instructed. In the letter from the second defendant’s solicitor dated 18 January 2012 it was said that their clients, Mrs Postolova and Zoran Postolov, denied that Mr Mojcec had made a will on 11 August 2007. In a further letter from the solicitors dated 27 January 2012 it was said that:
2.The plaintiffs allege that the deceased made a Will dated 11 August 2007 … in New South Wales.
3.My clients instruct that the alleged 2007 document is a forged document because on 10 & 11 August 2007, the deceased was not in New South Wales, but in Melbourne with his family.
It was submitted that this had improperly affected Mr Holland’s thinking. Mr Holland denied that he had been influenced by these statements and I accept his evidence. After all, an expert can generally work out, without being told, what opinion or result the client is hoping to receive from the expert. Nevertheless, in my opinion, the letter should not have contained the assertions it did, as this was obviously going to be a critical and disputed fact in the proceeding.
Mr Arthur’s next criticism of Mr Holland’s evidence was that he had based his opinion on too few standard signatures. It was not explained why Mr Holland was not provided with the 2002 will (K2), the 2003 will (K3) and the passport (K5). He agreed that it would have been “helpful” to have additional signatures. Nevertheless, Mr Holland rejected the suggestion that he did not have sufficient standards to reach a reliable conclusion. He said that the result from examining those he had to work with was “so compelling” that he was satisfied. Again, I accept his evidence. Interestingly, as far as I can tell Mr Holland’s dissimilarities also appear to apply to the signatures on the documents he was not provided with prior to him preparing his report.
Mr Arthur also criticised Mr Holland for expressing his opinion in such absolute terms, particularly as it was a negative opinion that was being expressed as a matter of certainty. Mr Arthur referred to articles which suggested that to reach a conclusion that a person did not write a signature was the most difficult conclusion to reach. Mr Holland agreed with this as a general proposition but said that it could be done if there was sufficient material, as in this case, on which to base the conclusion. Whether Mr Holland was correct in stating his opinion in the terms he did, rather than opining that it was “highly probable” or even only “probable” that Mr Mojcec did not sign the August 2007 will is not as important, in my opinion, as the fact that he found significant dissimilarities between the signature on the questioned document and the standard signatures.
Finally, Mr Arthur criticised Mr Holland for agreeing that a signature by someone bending down over a coffee table might result in some differences from a normal signature, but then asserting that he would not expect that situation to bring about the differences that he had observed. It seems to me that this was a perfectly reasonable and logical comment for an expert such as Mr Holland to make. Moreover, in making his criticism, counsel overlooked his own expert’s evidence that studies had concluded that by and large the writing features remained “fairly consistent” from a variety of seating positions, including bending over a low surface.
My consideration of the handwriting evidence has led me to conclude that I am satisfied on the balance of probabilities,[12] after taking into account the seriousness of such a finding on the credibility of several of the plaintiffs’ witnesses,[13] that Mr Mojcec did not sign the August 2007 will. Thus, if it had been necessary, I would have found that the defendants had satisfied the onus on them to prove facts justifying a refusal to admit the August 2007 will to probate.
[12]Able Australia Services v Yammas [2010] VSC 237 (Hargrave J) citing Worth v Clasohm (1952) 86 CLR 439, 453 (Dixon CJ, Webb and Kitto JJ) and Kantor v Vosahlo [2004] VSCA 235, [22] (Ormiston JA).
[13]Briginshaw v Briginshaw (1938) 60 CLR 336.
Orders
For the above reasons, I have concluded, as previously stated, that probate of the December 2005 will should not be revoked and probate granted instead to the August 2007 will. Accordingly, I will order that the summons issued on 10 November 2010 by Martin Zivojin and Anna Robinson be dismissed. I will hear from the parties on the question of costs.
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