Grbavac v Vujcich - [2020] NZHC 1953

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV 2016-404-1848

[2020] NZHC 1953

UNDER Part 27 and Rule 27.34 of the High Court Rules

IN THE MATTER

of the ESTATE OF JOSEPH GRBAVAC

BETWEEN

NIKOLA GRBAVAC

First Plaintiff

NIKOLAS VLADIMIR JOSEPH GRBAVAC

Second Plaintiff

AND

PETER TONI VUJCICH, MATE TOLJ and MIRKO DANIEL UJDUR

Defendants

Hearing: Other matters:
8-12, 15-19, 22 July, 30 August 2019

2, 12 13, 16 September 2019

Appearances:

E St John, N Devery and J Carruthers for Plaintiffs P Stevenson and S Carter for Defendants

Judgment:

6 August 2020

JUDGMENT OF DUFFY J

This judgment is delivered by me on 6 August 2020 at 10am pursuant to r 11.5 of the High Court Rules.

.....................................................
Registrar / Deputy Registrar

Solicitors/Counsel:
E St John, Barrister, Auckland N Devery, Barrister, Auckland WCM Legal Limited, Greytown
Penelope Stevenson, Barrister, Auckland

GRBAVAC v VUJCICH [2020] NZHC 1953 [6 August 2020]

Table of Contents

Introduction [1]

Background [5]

The recent testamentary dispositions [11]

Relevant law [16]

Evidential approach [27]

Events leading up to the challenged will
Health [29]

Mr Joseph’s interactions with Mr Lucas and Ms Bullot [38]

The 2011 draft will [41]
The idea of a change from gifts to family under a will to a

charitable trust/s  [45]
The enduring powers of attorney are executed early 2012  [50]
The meeting on 2 March 2012  [51]
Mr Joseph is “bullied” into signing a power of attorney                   [54]
Finding  [60]

Meeting on 24 September 2012 [61]

Finding [62]

Mr Lucas contacts primary health care practitioner for Mr Joseph
about his capacity [63]

Finding [68]

Later attendances of Mr Lucas on Mr Joseph in 2012 [69]

Finding [71]

Room for confusion [75]

Finding [83]

Ms Bullot assumes sole responsibility for will instructions

Events around February 2013 [85]
Finding [91]

What does the letter of 19 February 2013 represent? [92]

Finding  [102]
Optional Codicils  [104]
Finding  [113]

Execution of the 2013 Codicil [114]

Finding [121]

Ms Bullot’s assessment of Mr Joseph’s testamentary capacity [126]

Finding [138]

General practices adopted by Mr Lucas in relation to

will-making and how these were applied to Mr Joseph [143]
Finding [150]

Decision to use a codicil to change the 2004 will [156]

Finding [157]

Effect of changes to the 2004 will [160]

Finding [163]

Execution of power of attorney in 2014 [164]

Finding [171]

General professional attitude [175]

Finding [178]

Evidence of Mr Joseph’s other commercial dealings

after execution of 2013 codicil [179]
Finding [181]

Medical evidence [183]
Finding [192]

More general observations on Mr Joseph’s capacity

from family members [202]

Those family members who had close regular contact with Mr Joseph in his final years

Dragica Behrent [205]

Finding [210]

Ratomir Petricevich [211]

Finding [226]

Mirku Ujdur [230]

Finding [256]

Those family members who had less regular contact with Mr Joseph in his final years

Mr Nikola and his wife Juliana  [263]
Milan Radich  [269]
Dr Vujcich  [275]
Finding  [280]

Ex post facto opnion evidence from…

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 Grbavac v Vujcich

Details

AGLC: Grbavac v Vujcich [2020] NZHC 1953
Case: [2020] NZHC 1953
Decision Date: 6 August 2020

CaseChat Overview and Summary

The plaintiffs, Nikola Grbavac as litigation guardian of his son, Nikolas Vladimir Joseph Grbavac, sought to recall the grant of probate of the last will of Joseph Grbavac on the ground he lacked testamentary capacity when he executed the 2013 codicil. The defendants, the executors of the will, opposed the recall. The court had to decide whether the defendants had discharged the onus of proving Joseph had testamentary capacity when he executed the 2013 codicil. The court found that the defendants had failed to discharge the onus of proof. The court found that lack of capacity was a tenable issue. The court found that the defendants had not produced sufficient evidence to prove Joseph had testamentary capacity when he executed the 2013 codicil. The court concluded that the 2013 codicil was invalid and ordered the recall of the grant of probate of the will of Joseph Grbavac dated 15 November 2004 insofar as it was amended by the 2013 codicil. The court declared the 15 November 2004 will as it was executed on that day to be the last valid will of Joseph Grbavac and ordered a grant of administration to the named executors and trustees in the original form of the will.

Orders