Ivan Stojic ("the deceased") died in Zagreb, Croatia, on 13 June 2014, aged 73 years, leaving property in NSW; a total of five children by four partners; and multiple Wills including, relevantly, a Will dated 4 November 2013 and disputed Wills dated 23 May 2014 and 6 June 2014.
Born in Croatia in 1940, resident in Australia for many years, the deceased returned to live in his homeland in 2008, with periodic return visits to Australia thereafter, and continuously close supervision of his business interests in Australia.
These proceedings require a determination of the validity or otherwise of the 2014 Wills, each of which is propounded by the plaintiffs. It is agreed that, as made, the 2013 Will was valid and that it can, and should, be admitted to probate if not revoked by one or the other of the 2014 Wills.
The final hearing was conducted upon the basis that, if the Court were to find that either of the 2014 Wills was essentially valid (as an expression of the testamentary intentions of a capable testator), but defective for a want of compliance with the formal requirements of section 6 of the Succession Act 2006 NSW, there would be no impediment to the last essentially valid Will being admitted to probate (under section 8 of the Act) as an informal Will.
The 2014 Wills are in substantially the same terms. Both were executed by the deceased at the urging of children dissatisfied with the terms of the 2013 Will. The May 2014 Will was thought, by its promoters, to be open to challenge because it was signed by the deceased only at the end of the instrument, not at the foot of each of its several pages. The June 2014 Will was executed by the deceased, at a time of extreme frailty, not by a signature but by a mark, an ink impression of a fingerprint, affixed to each page.
The parties agree (as do I) that "a thumbnail dipped in tar" can serve as a signature; but they are at issue as to whether the deceased's inability to append his signature on the June 2014 Will, in his usual handwritten form, is indicative of testamentary incapacity or a want of knowledge and approval of the Will.
Subject to one qualification, the basic contention of the defendant is that each of the 2014 Wills is invalid for a lack of testamentary capacity, and a lack of knowledge and approval, on the part of the deceased. The qualification is that, as an alternative formulation of a knowledge and approval challenge, the defendant contends that execution of the June 2014 Will was procured by "probate" undue influence (coercion, by another name, as Winter v Crichton; Estate of Galieh (1991) 23 NSWLR 116 instructs us) insofar as the Court might find, on the whole of the evidence, that the deceased's fingerprints were placed on the Will, not by a deliberate act of the deceased, but by the force (not violent, but something more than a guiding hand) of an activist witness to the event.
The defendant's knowledge and approval challenge to the 2014 Wills, jointly and severally, is aided by his invocation of "the suspicious circumstances rule", derived from Barry v Butlin (1838) 2 Moo PC 480; 12 ER 1089, confirmed in Nock v Austin (1918) 25 CLR 519 at 528 et seq and authoritatively explained in Tobin v Ezekiel (2012) 83 NSWLR 757 at 770-774, especially at [46]-[48] and [55].
Senior counsel for the plaintiffs conceded, correctly, that the objective evidence creates, in the understanding of probate law, a well-grounded suspicion, or doubt, as to whether the 2014 Wills express the mind of the deceased, sufficient to require the plaintiffs to prove affirmatively (without the benefit of a presumption of knowledge and approval arising from due execution of a will) that the deceased knew and approved of the contents of the Wills.
Both instruments were prepared and executed at the instigation, and under the close supervision, of the family members (the plaintiffs and Anton Stojic) who stood to benefit from their execution, in a process, choreographed by those persons, using services of advisers (a struck off solicitor, Mr Joe Assi, and, through him, the solicitor Bruce Dennis) other than the deceased's established professional connections (Mr KL Emanuel, solicitor, and Mr IB Robertson, accountant) through whom the deceased had organised his Will dated 4 November 2013.
That process occupied a time during which the deceased's health progressively declined; he became increasingly frail; his own suspicions about the reliability of the defendant having been engaged, he was prone to excitement in his desperation to create harmony within a fractured family as death approached; and the defendant's rivals actively excited distrust of the defendant in the deceased. They encouraged the deceased to believe, contrary to the fact, that the defendant had caused funds for the payment of his medical expenses to be withheld.
The parties' soundly-based consensus that: (a) if essentially valid, there is no impediment to either of the 2014 Wills being admitted to probate even if formally defective; and (b) there are sufficient suspicious circumstances to displace any presumption of knowledge and approval, relieves the Court of any obligation to debate whether such a presumption is, in any event, no more than an inference commonly drawn from established facts: Re Estate of Wai Fun Chan, Deceased [2015] NSWSC 1107 at [18]-[24].
Paraphrased, the requirement that the propounder of a Will prove that the testator knew and approved of the contents of the Will is a requirement to prove that the testator understood what he was doing and its effect, that the Will truly represented his testamentary intentions: Hoff v Atherton [2004] EWCA Civ 1554; [2005] WTLR 99 at [62]-[64]; Gill v Woodall [2011] Ch 380 at [14] and [71]-[72].
It is common ground that the plaintiffs ultimately bear the onus of proving that one or the other of the 2014 Wills represents the last Will of a free and capable testator: Bailey v Bailey (1924) 34 CLR 558 at 570-572 and Re Hodges (1988) 14 NSWLR 698 at 704-707; Ridge v Rowden; Estate of Dowling (Santow J, 10 April 1986) BC 9601342. Senior counsel for the plaintiffs accepted, again correctly, that the outcome of the proceedings turns largely upon an assessment of the evidence of the plaintiffs and their witnesses.
[3]
FAMILY RELATIONSHIPS
The parties invite the Court to tread warily in these proceedings in characterisation of the deceased's domestic partners because, apparently, that is an issue in other proceedings. It is not necessary for me to make a finding about the precise character of the deceased's relationships (and I do not intend to do so) because there is no dispute as to the paternity of the five children who identify as his children.
By Sharon Ann, the deceased had two sons. Anton Stojic was born in 1965 and is presently aged 51 years. Simon Stojic (the defendant) was born in 1971, and is presently aged 45 years.
By Monica Ward, the deceased had one son. Ivan Matthew Stojic (the second plaintiff) was born in 1979, and is presently aged 37 years. Ivan Matthew is sometimes described in the evidence as "Ivan Matthew", sometimes as "Matthew".
By Sanya Ferenc, the deceased had a daughter. Ivanna Ann-Marie Ferenc Stojic (the first plaintiff) was born in 1998, and is presently aged 18 years. These proceedings were commenced in her name by her mother as tutor. It is accepted on both sides of the record that, having recently attained her majority, she is entitled, and obliged, to be treated as a party in her own right.
By Jagoda Vukoje, the deceased had a son. Marijan Stojic was born in or about 2004, and is presently aged about 13 years.
[4]
LITIGIOUS ENTANGLEMENTS
Marijan, who suffers the disability of autism, is the only one of the deceased's five children not an active player in the acrimonious disputation that has attended the deceased's estate (before and after his death) since about October 2013.
That disputation has pitted Simon (the defendant) against each of the deceased's children other than Marijan. The plaintiffs (Ivanna and Matthew) have acted in concert with Anton against Simon in a common endeavour to undo transactions effected by the deceased, in and about October 2013, for the benefit of Simon.
The 2014 Wills occupy one field of disputation.
Another concerns ownership and control of the deceased's family company, Statewide Office Furniture Pty Limited, so far the focus of two separate sets of proceedings (respectively numbered 2014/176361and 2016/81147) in the Court's Corporations List. The company manufactures metal office furniture and related products.
A third field of disputation concerns applications for family provision relief made, under Chapter 3 of the Succession Act 2006 NSW, by each of Ivanna (case number 2015/150539), Matthew (case number 2015/60779), Anton (case number 2015/174075) and Marijan (case number 2015/166103).
The merits, or otherwise, of these various proceedings have not been canvassed in the current proceedings notwithstanding passing references to them.
Nor have the merits, or otherwise, of proceedings in the Family Court of Australia affecting Simon Stojic, the defendant in the current proceedings, despite references to them.
All the collateral proceedings are expressly mentioned here so that they can be put aside as substantially irrelevant to a determination of the current proceedings, focused upon the validity or otherwise of the 2014 Wills.
Facts material to a determination of the collateral proceedings (including, for example, disputation about ownership and control of Statewide Office Furniture Pty Limited in days preceding the deceased's death) may have significance in the current proceedings as primary facts; but it is neither necessary nor appropriate to enter upon the merits or otherwise of the collateral proceedings themselves.
The deceased's family is engaged in a ruinous litigious civil war which must be fought one battle (one set of proceedings) at a time. The current battlefield is confined to a determination of the validity or otherwise of the 2014 Wills.
The complexity of the deceased's family arrangements is underscored by a claim of his housekeeper, Bozica (also known as "Boba") Androvic, to have been in a de facto relationship with him during the last two years or so of his life.
She gave evidence in the current proceedings in circumstances in which, in the interests of fairness, I allowed both sides of the record opportunities to cross examine her. Her evidence was taken via a video link from Croatia (during the course of which her visual contact with Sydney was interrupted) using the services of an interpreter located in Sydney. During her initial cross examination on behalf of the plaintiffs, having given evidence in chief on behalf of the defendant, it emerged that she had given conflicting statements to opposite sides of the record in circumstances in which she might reasonably be supposed to have had a commercial motivation to do so. In her oral evidence, she spontaneously complained that she should have been, or be, allowed compensation from, or a share of, the deceased's estate. Although she plainly has access to legal advice in Croatia (she initially proposed that she be accompanied by her solicitor in giving evidence), she has made no application for family provision relief.
[5]
THE COMPETING APPLICATIONS
Simon seeks an order that the 2013 Will be admitted to probate in solemn form and that probate of it be granted to him.
Ivanna and Matthew seek to have one or the other of the 2014 Wills admitted to probate, with a grant of letters of administration made to them in lieu of a grant of probate to Anton, the executor named in the Wills. Anton supports them in this. He renounced probate. He is in indifferent health, having had a long history of mental health problems.
[6]
THE SIZE AND COMPOSITION OF THE DECEASED'S ESTATE
According to an executor's affidavit sworn by Simon on 17 February 2017, and not disputed by his adversaries at the final hearing of the proceedings (which concluded that day), the deceased's estate has an estimated net value of about $8.1 million.
The bulk of the estate comprises land in Garema Circuit, Kingsgrove, in the State of NSW (presently leased to, and occupied by, Statewide Office Furniture Pty Limited); accrued rent relating to those premises; and a loan account with the company.
The company's lease (registered number AI 498322) provides for a 5 year term expiring on 30 June 2018, with an option to renew for a further 5 year term.
[7]
EARLY PREFERMENT OF THE DEFENDANT, A CAUSE FOR DISPUTATION
The lease was prepared by Mr Emanuel, on instructions from the deceased via Mr Robertson, as part of a package of estate planning transactions that included the deceased's Will dated 4 November 2013.
In late 2013 the deceased favoured the defendant in several of those transactions. On or about 4 October 2013 he caused the defendant to be appointed as a Director, and as the Secretary, of Statewide Office Furniture Pty Limited, and he made arrangements for the defendant to be transferred 80% of the share capital of the company, providing for the balance of the share capital to be transferred to a valued employee, Mr Josip Bezina. On 4 November 2013 he made a Will which named the defendant as his executor and, in substance, divided his estate equally between his four capable children: the plaintiffs, the defendant and Anton. On 7 November 2013 he transferred $4 million into the defendant's bank account, evidenced by a bank statement of the defendant (Exhibit D24) recording the transfer as a gift. In December 2013 he transferred to the defendant's ownership a residence in Peacock Street, Bardwell Park, sold by the defendant a year later for $1.1 million.
It is not necessary to engage controversy about the proper characterisation of other transactions affecting the deceased and the defendant in or about 2013 as the transactions here identified are those that lie at the heart of family disputation and, one way or another, are said to colour an assessment of the deceased's conduct in May-June 2014. In particular, I leave to one side a deposit of $1.8 million into the defendant's account in December 2013, which the defendant claims as his own.
The putative transfer of control of Statewide Office Furniture Pty Limited to the defendant, and the transfer to him of $4 million and a residential property, in circumstances in which, within the deceased's family, there appear to have been different expectations of the defendant lie at the heart of the plaintiffs' justification of the 2014 Wills: the general effect of which was to divide the deceased's estate between the plaintiffs and Anton, to the exclusion of the defendant, recording that separate provision had been made by the deceased for his disabled son, Marijan.
Simon's evidence, which I accept as plausible in this respect, is that the deceased, in late 2013, told Simon that the gift of $4 million would assist Simon to buy the Kingsgrove land from the deceased's estate (implicitly enuring for the benefit of the plaintiffs, Anton and Simon) in a few years' time so as to facilitate the ongoing profitability of the company. That is consistent with the estate planning character of the transactions effected by the deceased at that time, despite his later recantations at the urging of the plaintiffs and Anton.
The deceased's estate planning transactions were effected on his own initiative, not at the urging of Simon or the deceased's professional advisors, Messrs Robertson and Emanuel. He might not have been wise in the decisions he made, but he appears to have been deliberate.
[8]
JOINDER OF BATTLE
With the apparent exception of Marijan, the defendant's siblings actively lobbied the deceased in the last months of his life in a concerted effort: (a) to wrest control of Statewide Office Furniture Pty Limited from the defendant; and (b) to write the defendant out of the deceased's will, in circumstances in which the defendant declined to accept that he was under any legal or equitable obligation to his siblings (other than Marijan) to hold on their behalf property transferred to him.
The defendant's adversaries purported to take control of Statewide Office Furniture Pty Limited, purportedly replacing Simon with Anton as Managing Director, and with a disputed issue of shares, on 23 May 2014 (the date of the first disputed Will), giving rise to the first Corporations List proceedings and, ultimately, a resumption of control by the defendant. The flavour of these events appears in reasons for judgment published by Black J on 18 February 2015 as In the matter of Statewide Office Furniture Pty Limited [2015] NSWSC 142. It is not necessary to enter upon the detail.
The second Corporations List proceedings (apparently still pending) evidently involve a claim made by the Statewide Office Furniture Pty Limited (under the control of the defendant) for compensation against Mr Josip Bezina, his son Adrian, Anton Stojic and Mr Assi arising out of events described by the defendant in his evidence as a "coup" and his efforts to counter it. Mr Bezina senior, Anton Stojic and Mr Assi have each given evidence against the defendant in the current proceedings.
Whether it has or has not been productive of anything else, the family's engagement in litigation has exposed them (or at least Simon, as he deposes) to prohibitive legal costs, and quite possibly undermined the profitability of Statewide Office Furniture Pty Limited.
[9]
THE COURSE OF THE FINAL HEARING
The course of the final hearing manifested, on both sides of the record, a guerrilla war mentality engaged in irregular combat.
The defendant opened proceedings with an application to amend his defence, with but a week's notice, to advance general allegations of (probate) undue influence and fraud said to be based entirely on evidence of the plaintiffs and their witnesses; the plaintiffs plausibly objecting, that application was dismissed.
Without any substantial notice, the plaintiffs, for their part, produced during the hearing a new witness to the deceased's testamentary capacity in June 2014, Father Damir Stojic.
Without notice, and without arrangements duly made for her to be fairly confronted with documentation during the course of her oral evidence via video link, the plaintiffs cross examined Ms Androvic on her prior inconsistent statements.
A ruling that both sides be permitted to cross-examine that witness after arrangements had been made for her to be fairly confronted with her inconsistent statements prompted the plaintiffs to apply (unsuccessfully) for leave to recall the first plaintiff (Ivanna), several witnesses after the conclusion of her oral evidence, for the ostensible purpose of restoring her evidence in chief, destroyed in cross-examination and disclaimed in re-examination.
[10]
WITNESS CREDIT AND RELIABILITY
Each side has adduced evidence of statements made by the deceased denigrating the other. As a general proposition, I accept that it is plausible that the deceased did make such statements - strongly worded as some were - depending on who was present at the time and what, in the assessment of a dying man, was the line of least resistance. This is not to say that the influence on the deceased of any person, or persons, was "undue" in any relevant sense, but to notice a need to assess the evidence in light of a social reality.
In assessing the reliability of witnesses, allowance needs to be made for cultural imperatives and family tensions. I do not charge any witness with conscious dishonesty; but the deceased's children, in particular, are so passionately committed to their intra-family feud, and to frames of thought calculated to advance their respective causes in that feud, that the reliability of their perceptions of events associated with contact with the deceased, and dispositions of his property, is rendered suspect. Their evidence needs to be treated with caution. At times (for example, with Ivanna's evidence), it seems too pat; tailored for the case to be proved.
Ivanna's mother, Sanya Ferenc, with whose active encouragement Ivanna participated in the process of preparation of the 2014 Wills, gave no evidence in the proceedings. As Ivanna's tutor, she followed the course of the proceedings from close quarters.
Sanya was a central player in the family drama of 2014. Mr Assi was enlisted to the cause by her, a personal friend. She introduced him to Anton. She also enlisted Anton. She actively marshalled Anton, Matthew and Ivanna in pressing for them to displace Simon, and to take over the deceased's affairs, in and about May 2014. She wrote a strongly worded letter dated 1 May 2014 to Statewide Office Furniture Pty Limited (ostensibly on behalf of Anton, Matthew and Ivanna), passed on to Mr Emanuel by the company's office manager (Georgia Armstrong), in which Simon's bona fides was explicitly called into question, and threats of legal action were made, supposedly in the interests of the deceased, but no less in the interests of her putative principals. It has the appearance of a game-plan, a plan of action. Expressed in its own terms, it was a "letter of demand" for "equal treatment" of the plaintiffs and Anton vis-a-vis Simon.
Particular caution is required upon an assessment of Ivanna's evidence because of her impressionable youth, and, more especially, her inability to adhere to her affidavit evidence, relied upon as her evidence in chief, deposing to due execution of the 2014 Wills and ancillary events. She was 15 years of age in May-June 2014. She had not seen her father, the deceased, for two years. It was a traumatic time for her. Her memory of events associated with the 2014 Wills is poor, if not non-existent. She is, if she was not then, close to Matthew; they live together. She had not met either Anton or Simon until May 2014 or thereabouts.
Particular caution is required in dealing with Matthew's evidence because of his intense partisanship, coupled with a tendency to give evidence in an adversarial manner, transparently looking to advance his case. His actions and evidence have been motivated by a strong desire to displace Simon, informed by a belief that he is better qualified than Simon to run the family business, and personal antagonism. When he and Simon were for a short time both in Croatia in early May 2014 they had a physical confrontation, the origins of which appear to have been related to rivalry, and conflict, in and about the operations of Statewide Office Furniture Pty Limited.
Particular caution is required upon an assessment of the evidence of Anton because, although conscientious, he appears at times to have lacked judgement, perhaps associated with his health problems. His willing co-operation with the plaintiffs is informed, in part, by a consciousness that he is the deceased's eldest son and, but for his health problems, may not have been passed over for Simon. Despite his denials, he appears to have acted with a financial motivation no less strong than other members of the Stojic family, Matthew in particular.
Particular caution is required in dealing with the evidence of Simon because, blinded by the wealth that ostensibly came his way in or about 2013, he lacks insight into the expectations (even reasonable expectations) of others involved in administration of the affairs of the family. He fuelled their suspicions when, made the central object of the deceased's bounty, he indulged himself with new found wealth. He was, perhaps, prone to be baited by Matthew and to overreact to any perception of provocation. Each has a short fuse.
Caution is also required in assessing the reliability of other witnesses apparently committed to a cause.
Leaving aside his chequered history (as a struck-off solicitor who served gaol time), Mr Assi was a committed player in the process of wresting control of Statewide Office Furniture Pty Limited from the defendant, and in taking control of the deceased's testamentary dispositions via a Will, or Wills, designed to negate the deceased's Will dated 4 November 2013. He was paid a retainer by Anton, and he stood to gain financially from success on the part of the defendant's opponents. He attended a director's meeting of Statewide Office Furniture Pty Limited on 23 May 2014 (also attended by Joe Bezina and Anton) at which the defendant was purportedly displaced by Anton. He prepared the Will dated 23 May 2014 and decided it had to be re-executed. He was sent by the proponents of the new Will(s) - principally Anton and Matthew - to Croatia to do Simon down, inter alia, by signing the deceased up to the Will dated 6 June 2014.
The deceased's nephew, Marijan Stojic, was also an active player in that process, working with Mr Assi and the defendant's siblings, committed to their cause. He lived with the deceased, as a family companion, in the last months of the deceased's life, never far removed.
Josip Bezina experienced his own frustrations in dealing with the defendant, with the result that he was reluctantly drawn in to the family feud against the defendant. His evidence that Simon suffered from hubris is probably correct; but his evidence as to details is open to doubt, and his sympathies are plainly with the plaintiffs. He and Simon are on opposite sides of ongoing litigation concerning Statewide Office Furniture Pty Limited.
Enough has been said about Ms Androvic. She did not fare well in her presentation of evidence, even allowing for logistical difficulties of evidence taken via video link and an interpreter.
Father Damir Stojic was true to his calling in the evidence he gave; but even he was too close to tensions within the family to be wholly objective. His administration of the last rites to the deceased on 5 June 2014 may well have been accompanied by an exchange of family pleasantries, as he says; but not searching, critical conversation. I attach little weight to the deceased's participation in the formulaic prayers led by a priest attending to the solemnities of the occasion; the deceased's devotional instincts, not to say rote learning, may have kicked in.
Other witnesses were not cross examined but, with two exceptions, their evidence was not at the centre of controversy, and it can be passed over without specific comment beyond formal notice.
The first exception is Jeremy Hawson, a consular official in the Australian Embassy in Croatia. He witnessed both the deceased's Will dated 4 November 2013 and the disputed Will dated 23 May 2014. He provided an affidavit of attesting witness to the solicitor for the plaintiffs in relation to the 2014 Will, and a similar affidavit to the solicitor for the defendant in relation to the 2013 Will. Each affidavit authenticated the deceased's execution of a Will, but stopped short of any evidence of substance beyond that. Neither side of the record required the deponent for cross examination. Both sides evidently accepted his disclaimer of remembrance of events beyond the formal.
The second exception is Georgina Armstrong, the office manager of Statewide Office Furniture Pty Limited, whose day-to-day responsibilities included ensuring that the deceased's credit card was routinely topped up to allow his medical expenses to be paid without delay or impediment.
Messrs Emanuel and Robertson gave independent, credible evidence consistent with their professional callings; but, although each of them communicated with the deceased by telephone in 2014, they were not directly involved in critical events. Each of them, in mid-May 2014, was on the periphery of events. Each was made aware that something was happening in management of the deceased's affairs, but not allocated a primary role.
Mr Emanuel's last conversation with the deceased was on 13 May 2014. In that conversation the deceased foreshadowed making a new Will (without offering specifics about his testamentary intentions) and, in a manner that induced Mr Emanuel to proceed cautiously, opened the way for Anton to obtain a copy of the Will dated 4 November 2013. As requested by the deceased, by a letter dated 16 May 2014 Mr Emanuel sent the deceased a draft power of attorney providing for Mr Robertson and Anton to be appointed joint attorneys (in lieu of a longstanding appointment of Mr Robertson as the deceased's attorney). The same letter invited the deceased to provide written instructions should the deceased decide to make a new Will. No such instructions were ever given to Mr Emanuel.
Mr Robertson's last conversations with the deceased were on 10, 13 and 17 May 2014 during which he was, perhaps, drawn closer to the family tensions than Mr Emanuel. On 13 May 2014 the deceased told him that Anton had invited the deceased to appoint him (Anton) as executor of his Will. On the same occasion the deceased told Mr Robertson that, at the suggestion of Anton, the power of attorney held by Mr Robertson was to be revoked and to be replaced by a power of attorney in favour of Anton so that Anton could "stop Simon from using money" that the deceased had given him.
A new Will was spoken of, but the professionals through whom the deceased had traditionally conducted legal business were given no details of any substance.
Mr Emanuel and Mr Robertson both exhibited restraint in their presentation of evidence, consistent with concern about how the events of mid-2014 unfolded, coupled with an appreciation of a limited role in those events. They appear to have been deliberately marginalised, and kept in the dark by the proponents of the 2014 Wills.
Informed of the events of 23 May 2014 insofar as they related to management of Statewide Office Furniture Pty Limited, Mr Emanuel wrote to the deceased on 26 May 2014 formally distancing his firm from warring factions within the company and inviting a response to his letter dated 16 May 2014. Unless it be a cryptic telephone message of 28 May 2014 left by the deceased for Mr Emanuel, and not followed up on either side of that communication, none came.
[11]
EXECUTION OF THE WILL DATED 23 MAY 2014
The deceased's Will dated 23 May 2013 was executed at the Australian Embassy in Zagreb. It was witnessed by Mr Hawson and the deceased's nephew, Marijan Stojic. Ivanna accompanied Marijan and her father to the Embassy, but stayed outside the Embassy without witnessing execution of the Will.
Marijan was not challenged in his evidence that the deceased went to the Embassy with a copy of the Will in his personal possession, but he gave no evidence of the Will having been read by or to the deceased before its execution. Ivanna's evidence of having read the document to her father (in the absence of any other person, at his home) before its execution fell away in both cross examination and re-examination.
[12]
EXECUTION OF THE WILL DATED 6 JUNE 2014
The deceased's Will dated 6 June 2014 was executed at the deceased's residence in Zagreb and ostensibly witnessed by Mr Assi and the deceased's nephew Marijan Stojic, with Ivanna and Ms Androvic hovering in the vicinity.
Arrangements for execution of the Will on 5 June 2014 fell through when Jagoda (mother of the deceased's son, Marijan) created a fuss by contesting the bona fides of the Will and urging the deceased not to sign it. At the suggestion of the deceased's nephew, Marijan, execution of the Will was postponed for a day in order to ensure Jagoda's absence.
Jagoda gave no evidence in the proceedings. Her son, Marijan, is expressly not provided for in the Will, though separate provision appears to have been made for him inter vivos.
At about the time of execution of the Will dated 6 June 2014, the deceased also executed (by a finger print mark) an instrument dated 5 June 2014 (ostensibly witnessed by Mr Assi and the deceased's nephew Marijan) purporting to revoke the power of attorney held by Mr Robertson. Marijan explained the differential date as an error on his part.
[13]
TESTIMENTARY CAPACITY AS AT 23 MAY 2014
Senior counsel for the defendant concedes, correctly, that the defendant's challenge to the deceased's testamentary capacity on 23 May 2014 is not a strong one. There is no expert medical evidence specifically bearing on the question. Mr Hawson, an independent witness on any view, evidently witnessed nothing untoward about the deceased executing a Will at that time. The date of execution was sufficiently proximate in time to conversations with Messrs Emanuel and Robertson to regard their evidence as consistent with at least some capacity on the part of the deceased to transact the business of making a Will. So too is the diary note, made by Mr Emanuel's assistant, recording a telephone call made by the deceased to Mr Emanuel on 28 May 2014, but evidently not followed up on either side.
I am satisfied that, as at 23 May 2014, the deceased had sufficient testamentary capacity to make the Will bearing that date if and to the extent he was allowed, and took, time to read it (or have it read to him) and to reflect upon its terms. I doubt that he was able to make the Will, or any similar Will, without assistance.
[14]
STATUS OF THE 6 JUNE 2014 WILL
By 6 June 2014, the deceased's health had deteriorated. He was on any view frail and unable physically to hold a pen with dexterity sufficient to sign the Will document prepared for him. The evidence is reasonably open to a finding, and I infer, that his nephew, Marijan Stojic, was the moving force in securing the deceased's fingerprints on the document, that placement of those fingerprints on the document was not a voluntary act of the deceased. This, Marijan denied; but Mr Assi's description of events suggests otherwise. It is common ground that Marijan, at least, "guided" the deceased's hand to every page but not, as I find, that he did so without the deceased's knowing participation.
The concepts of "testamentary capacity" (classically explained by reference to Banks v Goodfellow (1870) LR 5 QB 549 at 565) and "knowledge and approval" are distinct. A testator might have the capacity (ability) to understand but not, in fact, understand a Will and its effect. Nevertheless, an application of each concept to particular facts generally draws upon a common factual matrix because a court's determination must be made on the whole of the available evidence. That is so, particularly, where, as in these proceedings, the parties have not adduced expert medical evidence on the specific question of "capacity".
In any event, the Court needs to be satisfied that the testator had the capacity to remember, to reflect and to reason and, generally, that he did so in a rational way: King v Hudson [2009] NSWSC 1013 at [50]-[51]; Dickman v Holley; Estate of Simpson [2013] NSWSC 18 at [159]; Estate of George Aeneas McDonald [2015] NSWSC 1610 at [53]-[70]. Decisions about "testamentary capacity" and "knowledge and approval" are necessarily fact-sensitive.
The ultimate question, on the facts of the particular case, is whether the Court is satisfied that a particular testamentary instrument represents the last Will of a free and capable testator: Woodley-Page v Symons (1987) 217 ALR 25 at 35. The proponents of a Will bear the onus of proving that fact on the balance of probabilities, taking into account the nature of the case and the gravity of matters alleged: Evidence Act 1995 NSW, section 140; Briginshaw v Briginshaw (1938) 60 CLR 336 at 361. The effect of an initial doubt about the validity of a Will is to require a vigilant examination of the whole of the evidence which the parties place before the Court; that examination having been made, a residual doubt is not enough to defeat a claim for probate unless it is felt by the Court to be substantial enough to preclude a belief that the document propounded is the last Will of a free and capable testator: Worth v Clasohm (1952) 86 CLR 439 at 452-453.
Care needs to be taken, on the way to an answer of the question "Is this the last Will of a free and capable testator?", not to place undue emphasis on a formulaic articulation of the law, or fine linguistic distinctions, sometimes grounded in the imperatives of a jury trial procedure, or practice rules, no longer representative of case managed proceedings. Cf, Gill v Woodall [2011] Ch 380 at 388[22]- 389[23]. The question needs to be addressed, as a question of substance, on the whole of the available evidence.
Given the similarity in terms of the 6 June 2014 Will and the Will dated 23 May 2014, I have given consideration to whether doubts existing as to the testamentary capacity of the deceased on 6 June 2014, his execution of the earlier document might be treated as equivalent to instructions for the preparation and execution of the latter document, with the earlier date being the critical date for an assessment of capacity: Bailey v Bailey (1924) 34 CLR 558 at 572; Perrins v Holland; In re Perrins, decd [2011] Ch 270. The plaintiffs did not put their case this way - perhaps because it does little more than to focus attention on the independent status of the Will dated 23 May 2014 - but I mention the point for completeness.
In all the circumstances, I am not comfortably satisfied that the deceased possessed the requisite capacity to make a Will on 6 June 2014 or, still less, that he knew and approved the document to which his fingerprints were affixed. Marijan and Mr Assi were both strongly motivated (come what may) to secure fresh execution of a Will document, believing that the Will dated 23 May 2014 was, or might be, invalid for a want of due execution. The deceased's frailty, to the point of being unable to hold a pen, is not easily disregarded in this context.
I am not satisfied that the Will dated 6 June 2014 is the last Will of a free and capable testator. It cannot be admitted to probate.
[15]
THE CRITICAL QUESTION : KNOWLEDGE AND APPROVAL OF THE 23 MAY 2014 WILL
The critical question is whether the deceased knew and approved of the content of the Will dated 23 May 2014.
Ivanna's evidence that she read the Will to the deceased before he signed it cannot be accepted. Having contradicted herself in cross examination, she disclaimed her sworn evidence in re-examination. The Court cannot have any confidence in the reliability of the disclaimed evidence.
Mr Assi deposes to a conversation with the deceased on 24 May 2014 in which the deceased allegedly twice said that he had read the Will at the Australian Embassy the day before. That evidence is too convenient. I do not accept it. Mr Assi's evidence is coloured by his partisanship.
Consequently, there is no evidence that the Will was read to, or by, the deceased before he executed the document, unless an inference that he personally read it is drawn from the facts that: (a) he attended the Australian Embassy with a copy of the Will in his personal possession, apparently knowing that it was an occasion upon which he was expected to execute it; and (b) he was able to read English, the language in which the Will was typed.
Senior Counsel for the defendant accepted that, although an overt reading of a will before its execution is a customary (and perhaps the best) means of ensuring that a testator knows and approves of the content of the will, the law does not prescribe that as a formal prerequisite for a finding of knowledge and approval: Cf, Fulton v Andrew (1875) LR 7 HL 448 at 460-465. He also accepts that, in light of the evidence of possession of a copy of the Will and an apparent opportunity, motive and ability to read it before its execution, it cannot be said that there is no evidence in support of a finding of knowledge and approval.
Unfortunately, the evidence is at best obscure as to the deceased's English literacy.
The issue was not explored in depth in any of the evidence. However, an affidavit of Simon records Simon in conversation with Mr Emanuel saying the deceased could not write or read English well, a statement specifically verified in the affidavit as true. Simon was not cross examined to the contrary.
On the other hand, a transcript of recordings of conversations between the deceased, Matthew and Ivanna (in slightly different versions reproduced in Exhibits P5 and D6) attributes to the deceased, at a time during his end days not clearly identified, a statement to the effect that he could read English, but not write it. That the deceased made such a statement must be accepted, but his capacity for self-assessment at the time of the recorded conversations is a hot issue.
By degrees, one is driven back to a consideration whether, suspicious circumstances attending the execution of the Will having been established, the plaintiffs have affirmatively proved that the deceased knew and approved of the contents of the Will.
At that point, the plaintiffs' case must falter. The circumstances in which the Will was prepared, and its execution, choreographed by interested persons (simultaneously with an abortive coup to take control of Statewide Office Furniture Pty Limited) tell against drawing of inferences which, in a more measured environment, might more confidently be drawn. The plaintiffs have not dispelled doubts (about whether the deceased did, in fact, know and approve of the contents of the Will) engendered by the "suspicious circumstances" attending its execution.
[16]
STATUS OF THE 23 MAY 2014 WILL
I am not satisfied that the deceased knew and approved the contents of the Will dated 23 May 2014. I am not satisfied that it is the last Will of a free and capable testator. It cannot be admitted to probate.
[17]
ORDERS
Passing over both the 2014 Wills as not proven, I propose to admit the 2013 Will to probate with a grant in solemn form to the defendant. I am satisfied that the prerequisites for a grant in solemn form have been established: Estate Kouvakis; Lucas v Konakas [2014] NSWSC 786 at [249].
Subject to allowing the parties an opportunity to be heard as to the form of the orders to be made to bring these proceedings to a conclusion, I propose to make the following orders:
1. ORDER that the Will dated 4 November 2013 ("the Will") made by Ivan Stojic ("the deceased"), who died on 13 June 2014 in Croatia, be admitted to probate in solemn form.
2. ORDER that probate of the Will be granted to the defendant, Simon Stojic.
3. ORDER that the proceedings be referred to the Registrar for completion of the grant, subject to compliance with the Probate Rules.
4. ORDER that the further amended statement of claim be dismissed.
5. RESERVE to the parties, and to the Special Administrator (Pamela Suttor) appointed by Orders made on 29 October 2014 and varied on 21 April 2015, liberty to apply for consequential or other relief in the working out of these orders, including a working out of interlocutory orders made or undertakings given contingent on a final determination of the proceedings.
As requested, I will allow the parties an opportunity to make submissions about costs.
[18]
ADDENDUM (3 March 2017)
Having published my reasons for judgment, and allowed the parties to make submissions about the proposed form of orders and costs, I record, first, that there is no submission made about the form of orders set out above in paragraph 103 and, secondly, there is no agreement that costs of the plaintiffs should be paid out of the estate of the deceased.
Not without misgivings, I propose to order that the costs of both sides of the record be paid out of the estate of the deceased.
There is an element of fiction involved in characterising the deceased as the cause of the litigation (Re Hodges (1988) 14 NSWLR 698 at 709E-910B) but, on balance, I incline to the view that the appropriate order is that all costs be paid out of the estate (Williamson Spelleken [1977] Qd R 152). The hotly contested events of May and June 2014 had their genesis in lopsided succession arrangements put in place by the deceased in late 2013, and excited arguments in which the deceased and all players in the drama (including the plaintiffs and the defendant) subsequently participated.
Accordingly, I make the orders set out in paragraph 103 of these reasons for judgment, together with the following orders as to costs:
1. ORDER that the costs of the plaintiffs be paid out of the estate of the deceased on the ordinary basis.
2. ORDER that the costs of the defendant be paid out of the estate of the deceased on the indemnity basis.
3. ORDER that payments made to the parties pursuant to order 1 of the orders made on 8 February 2017 (which provided for $50,000 to be paid to the plaintiffs on account and $50,000 to be paid to the defendant on account) be set off against their respective entitlements to costs under these orders.
In the minute of orders to be entered pursuant to these reasons for judgment these three costs orders will, in sequence, follow order 4 of the orders set out in paragraph 103, to be followed by the reservation of liberty to apply set out in order 5 of paragraph 103.
[19]
Amendments
06 March 2017 - In paragraph 7 the addition of the word "and" after the word "knowledge" and before the word "approval".
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Decision last updated: 06 March 2017