Doric v Orec [2025] NSWSC 245 | Case summary | Zoe

NSWNSWSC

Doric v Orec

[2025] NSWSC 245

Supreme Court of NSW|2025-03-24|Before: Peden J

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At a glance

Source facts

Court

Supreme Court of NSW

Decision date

2025-03-24

Before

Peden J

Catchwords

SUCCESSION — Contested probate — Lack of knowledge and approval
— Suspicious circumstances — Where sole beneficiary
drafted will in
English — Whether deceased understood English SUCCESSION

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Catchwords

SUCCESSION — Contested probate — Lack of knowledge and approval— Suspicious circumstances — Where sole beneficiarydrafted will inEnglish — Whether deceased understood English SUCCESSION— Contested probate — Testamentary capacity — Memory issues— Dementia — Where deceased sufferedfrom depression — Wherelater will’s bequests consistent with earlier will SUCCESSION— Family provision — Claim by adult child — Whether inadequateprovision — Operation of law ofintestacy — Where insufficientevidence of financial and material circumstances — Where claimant livedwith deceased— Where insufficient evidence led by claimant

Judgment

Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.

Medium Neutral Citation: Doric v Orec [2025] NSWSC 245

Bozica Orec died on 27 March 2022, aged 88. Her children with her late husband, Mato Orec, are Michelle Orec, Judy Doric, and Darko (Darryl) Orec. Those children are now in dispute about her estate.
Without meaning any disrespect, in these reasons I refer to the deceased and members of her family by their first names.
Bozica’s estate largely consists of a single asset, being the property at Regents Park, in which she was living when she died. A real estate agent’s market appraisal dated 31 January 2025 valued it at approximately $1.4 to $1.5 million.
In dispute are two purported joint wills of Mato and Bozica. One informal will dated 29 May 2001 was only witnessed by one person. Another was dated 3 July 2016.
Mato died on 26 January 2019, aged 89. There is no dispute that his whole estate passed to Bozica.
Both disputed wills name Darryl as the sole beneficiary of Bozica’s estate.
Judy contended that Bozica could not understand either will, both of which were prepared by Darryl and written in English. Further, she contended that Bozica had dementia at the date of the 2016 will.
Judy sought a declaration that Bozica died intestate, such that her estate would be divided equally between the three siblings.
If neither will is admitted to probate, Darryl has claimed further provision from the estate under s 59 Succession Act 2006 (NSW).
The issues for determination were as follows:
Is the 2016 document a valid will? This requires a determination of Bozica’s cognitive capacity and understanding of the document she signed.
If not, is the 2001 document a valid will? This requires a determination of whether Bozica understood and intended the informal document to be her will.
If neither will is valid, is Darryl entitled to further provision from Bozica’s estate, and if so, how much?
Obviously, Bozica cannot give evidence of her actual intentions and I must determine on the balance of probabilities her likely intentions, language and cognitive capacity based, to a large extent, on competing evidence from her children. Therefore, credibility of the witnesses is of significance here.
Assessing the credibility of witnesses invites considerations beyond mere ‘demeanour’, which primarily concerns whether a witness appears to be telling the truth as she believes it to be. Witnesses, especially those who think they are morally right, may subconsciously to conjure up a legal right that did not exist. Over time, one’s memory becomes fainter and one’s imagination may become more active. Accordingly, contemporary documents are of significance. Further, in assessing the credibility of a witness, one relevant factor is that witness’s potential motivations: Jeffreys v Sheer [2025] NSWCA 31 at [36] (Adamson JA, Mitchelmore JA and Basten AJA agreeing).

The document was created shortly before Mato, Bozica, Darryl and Michelle went to Croatia for a family wedding. It was the first time Mato and Bozica had been back to Croatia since emigrating to Australia in 1969.
Darryl and Michelle gave evidence that because of the impending travel the next day, the 2001 purported will was created in case the plane crashed or something happened.
Gordana recalled having organised the family’s tickets because she was working for the airline at the time. On the day the document was signed, she and Darryl attended Mato and Bozica’s home and discussed the trip. Gordana was not challenged on her memory that the discussion between the parents and Darryl was “to the effect [of] what if something happens to us” and “[w]e need to sign a will in case something happens to us”. Judy did not deny that, at the time, Bozica was anxious about going back to Croatia.
I accept that Bozica wanted Darryl to prepare a document as her will because she was concerned that something might happen to her while travelling to and from Croatia.
Darryl’s unchallenged evidence was that after his parents raised their concerns, he created the document at their house, by typing it and printing it for them. It was not suggested to him that he brought a pre-prepared document to the meeting. That is consistent with Gordana’s evidence that she did not recall Darryl bringing the document from their home.
No other witness gave evidence about the preparation of the document. Michelle was not present when the document was created or signed. However, her evidence was that Bozica showed her the document the next day in front of Darryl and Gordana. Michelle recalled Bozica having explained that she was worried in case anything happened while they were overseas and that the document gave Darryl the house and their money. Bozica told her that she had told Judy the document would be there, should something happen while they were travelling. Michelle was not shaken in her evidence that her recollection was accurate and I accept it was likely Bozica told Michelle about the document.
I accept that Darryl prepared the document based on what he understood were his parents’ wishes. His affidavit evidence was that his parents “read the typed document out loud, line by line, and then each signed the document in front of Gordana”. However, he accepted in cross-examination that “they’re their words … where they had to be translated they were translated.” He also accepted that the will was dictated partly in English and partly in Croatian.
I also consider it important that Gordana was not challenged on her evidence that Bozica or Mato said to her, “Gordana can you witness our signatures? It needs to be someone independent”. The understanding that an independent witness was needed is a strong indicator that Bozica and Mato intended the document to be formal and to record their testamentary intentions.
However, Judy asserted that Bozica could not read and understand English, and could not have read or understood the language used.

Much evidence was led by the parties about the extent to which Bozica could speak, read and understand English. Judy asserted that Bozica lacked the requisite English ability to comprehend what she was signing in 2001 and in 2016. Darryl asserted that Bozica had sufficient English to read, speak and understand English, and she did read and understand the 2001 document.
While the parties did not make separate submissions about any difference in Bozica’s English fluency between 2001 and 2016, there is more evidence of her fluency from 2010 onwards, including in 2016, when issues of her health became more prominent.
In assessing Bozica’s English language ability, I have had regard to both documentary evidence and witness testimony. The former was limited. For example, there were no documents where Bozica had written in English.
Most of the witnesses who gave evidence about Bozica’s fluency in English themselves spoke Croatian. They spoke mostly Croatian, their first language, with Bozica, with only some English used.
Darryl’s evidence was that his “parents were educated people who spoke both English and Croatian.” Darryl said that they were capable of speaking, reading and writing English “fluently”. He explained that they spoke in a mixture of both languages, something other witnesses corroborated. Darryl conceded that his “parents were more fluent in Croatian than they were in English.”
Gordana spent time with Bozica until 2010, when she and Darryl separated. Her evidence was that Bozica watched English television, read in English and could speak English on an “average basis”. She said, “[t]heir English was good enough to understand, [to] write, to read”. However, Gordana conceded that, in her company, it was rare that Bozica spoke English, given that those around her were Croatian speakers. Michelle’s evidence was that both her parents could read, write and speak English. She said that neither of them required an interpreter. She did not resile from that evidence in cross-examination.
However, Judy’s witnesses gave evidence that Bozica lacked English fluency.
Judy’s affidavit evidence was that her parents “always spoke in Croatian”. However, during cross-examination, she conceded that Bozica could speak “very, very basic” English, but at first emphasised that Bozica was unable to “read English at all”. Judy stated that Bozica was unable to complete a course at TAFE, despite having worked very hard, because of her inability to understand English. However, documentary evidence demonstrated that Bozica successfully passed three final examinations in 1983 and a further three mid-year examinations in 1984 at TAFE. This is inconsistent with Bozica possessing the very low level of English that Judy asserted. Further, Bozica worked for Bankstown Council doing cleaning. I infer she must have been able to communicate in English to hold that position.
Further, Bozica also worked in Judy’s childcare centre as a volunteer. Judy accepted that her mother needed to be able to communicate to other staff and follow instructions given in English.
I note in this regard, Judy appeared to try to minimise her mother’s language abilities. She rejected the suggestion her mother had worked in her childcare centre for about 10 years and said “not [a] period of time [in] years, no”. She said her mother started and did “some … basic training” in or around 1997. However, in 2002 Bozica obtained a certificate concerning training for childcare. There was no suggestion the training was in Croatian. Further, other witnesses said that Bozica was working at the childcare centre until about 2013. I find that on the balance of probabilities, Bozica worked at Judy’s childcare centre using sufficient English to communicate and read what was necessary from 1997 to 2012.
Without giving a time frame, Bozica’s granddaughter, Daniella, gave evidence that Bozica could not read English, could only communicate verbally in English “on a very limited scale”, and was only capable of “broken English”. However, it appears that Daniella, as with the family generally, spoke with Bozica in Croatian and there was little or no need to speak in English.
Daniella’s friend, Cherrie Evans, had interacted with Bozica since about 2001 at family celebrations and gatherings. Ms Evans described Bozica’s level of English as “very limited” and stated that she required Daniella to translate between English and Croatian for conversations beyond a basic level. However, Ms Evans’ stated that Bozica could say phrases such as “[c]ome eat. Parsley good for stomach”. I consider such a statement indicates that Bozica had a reasonable vocabulary beyond mere greetings. Ms Evans never observed Bozica reading documents; their interactions were limited to social family gatherings, including dinners at restaurants.
Marilyn Lauscaran, another friend of Daniella, gave evidence of speaking with Bozica between about 2008 and 2012 primarily in Croatian, that being her first language also. Her evidence was that Bozica “spoke very limited and broken English” or “conversational” English.
Michelle’s son, Dante (also known as Vince or Vinko), had sworn an affidavit in the proceedings in July 2023. However, by the time of the hearing, he had died. His affidavit was read subject to weight because his evidence could not be tested in cross-examination. Dante’s evidence was that he suffered depression, used cocaine and methamphetamine, and had been to prison for fraud. Also, about 12 months before his affidavit, he was charged with possession of methamphetamine and was sentenced to four weeks in prison. While that evidence about his criminal activity may well be true, it is difficult to place a lot of weight on his evidence about Mato and Bozica’s English language ability, where it is not clear whether his cognitive abilities and memories were affected.
In any event, most of Dante’s evidence concerned Mato’s language abilities and not Bozica’s. He did state that Bozica “could not read English. She could communicate on a limited scale in English”, and that she would have been able to “read the odd word” in the 2001 will. He gave no detail of examples of experiences to substantiate his conclusions, despite having lived with Bozica. This evidence is therefore of little, if any, weight.
Anna George had some form of romantic relationship with Darryl in around 2013. Her evidence was that Bozica’s “ability to communicate in English was very limited. She was not fluent in English at all. Her English was broken and I had to speak with her slowly for her to understand”. However, no examples were given to demonstrate her conclusions and she gave no evidence of the length of interactions with Bozica. Darryl denied Anna had a lengthy relationship with him or that she interacted with Bozica, about which he was not challenged.
In summary, all witnesses considered that Bozica could speak at least conversational English. I accept that witnesses who spoke Croatian themselves were more likely not to speak English with Bozica and would have had less experience of witnessing her speak English. I consider that this level was sufficient for Bozica in 2001 to communicate with English speakers everywhere she went, employers, children, and supervisors at the childcare centre.
In terms of Bozica’s ability to read, despite Judy having denied that Bozica could read in her affidavits, her evidence in cross-examination was:

The Court must be able to identify that an instrument represents the last will of the deceased as a free and capable testator. The principles governing the issue of testamentary capacity were set out in Lim v Lim [2023] NSWCA 84 (Lim) at [7]-[9] by Kirk JA (Bell CJ and Griffiths AJA agreeing), as follows. Testamentary capacity encompasses the following elements, which are prone to overlap and ought not to be read prescriptively:
The capacity to understand the nature of the act of making a will and its effects;
The capacity to understand the extent of the property the subject of the will;
The capacity to comprehend moral claims of potential beneficiaries;
The absence of mental disorders or delusions which affect the testator’s mental faculties so as to make them unequal to the task of disposing of their property; and
While the test of capacity is generic, what is required in practice depends upon the particular will. The simpler the will and the less surprising its contents, the easier it may be to establish the requisite capacity.
In Lim at [10], Kirk JA (Bell CJ and Griffiths AJA agreeing) observed that a “precondition of a valid will is that the testator knew and approved of the contents of the will”. That may require, in some cases, proof that the testator, “appreciated the effect of what they were doing, so that it can be said that the will contains the real intention and reflects the true will of the testator”: at [10].
Where a party seeks to contend that “suspicious circumstances” existed in the creation of a will, those circumstances should be identified so they can be appropriately addressed by evidence and submissions: Anderson v Yongpairojwong [2024] NSWCA 220 at [163] (Bell CJ, Mitchelmore JA agreeing).
The term “suspicious circumstances” is a term of art, the precise limits of which are not yet settled: Mekhail v Hana [2019] NSWCA 197 at [170]-[172] (Leeming JA, Basten JA agreeing).
Ordinarily, if a “will is rational on its face and is proved to have been duly executed, there is a presumption that the testator was mentally competent. That presumption may be displaced in circumstances which raise a doubt as to the existence of testamentary capacity” such that “the evidential burden [shifts] to the party propounding the will to show that the testator was of ‘sound disposing mind’”: Tobin v Ezekiel (2012) 83 NSWLR 757 (Tobin) at [45] (Meagher JA, Basten and Campbell JJA agreeing). However, “[p]articular vigilance is required where a person who played a part in the preparation of [a] will takes a substantial benefit under it. In those circumstances it is said that such a person has the onus of showing the righteousness of the transaction”: Tobin at [47].
Older people may be aware that they own property, but lack an accurate understanding of the value of that property at a particular time. In circumstances where a person understands the assets which comprise their estate, the absence of knowledge as to the precise value of those assets does not mean they are unable to distribute those assets by will: see eg Zorbas v Sidiropoulous (No 2) [2009] NSWCA 197 (Zorbas) at [64] (Hodgson JA, Bergin CJ in Eq and Young JA agreeing).

Dr Joseph candidly stated that she relied upon Judy to give an accurate summary of matters concerning Bozica. Judy accepted that she gave Dr Joseph the information contained in the report. To the extent that Dr Joseph’s reports recorded that Bozica exhibited various symptoms, these were primarily based on what Judy told her, rather than what Dr Joseph observed in a consultation. In circumstances where other witnesses have not corroborated these symptoms, I do not consider Dr Joseph’s records are conclusive as to those symptoms.
Dr Joseph did not see Bozica again until 6 April 2017, which was after the 2016 will was signed. No “neuropsych” report was obtained.
Professor Carmelle Peisah, a highly qualified and experienced old age psychiatrist, gave evidence as a jointly appointed expert about Bozica’s mental state on 3 July 2016, and its likely effect on her capacity to understand and appreciate the nature of making a will and the will’s effect.
Professor Peisah accepted that her assessment as a retrospective expert, having never seen Bozica, was limited, as she could only rely on Bozica’s medical reports and the family’s affidavits describing her.
Based on that material, Professor Peisah concluded that it was likely at 3 July 2016 that Bozica was suffering from moderate dementia, complicated by significant behavioural changes including aggression, agitation and depression. She considered that Bozica likely had an awareness and appreciation of the significance of making a will, but would have been limited in her understanding of the extent of her estate, and the respective strengths of the claims of persons who might reasonably be thought to have a claim on her estate.
During cross-examination, Professor Peisah explained that she would “never preclude the right to make a will based on a person’s mental state” and that other factors had to be considered when determining whether a particular person could make a particular will at a particular time. For instance, she said that even someone with “very severe dementia” could make “a very simple will in certain situations”.
Professor Peisah noted that Bozica exhibited a “range of abnormalities”, including memory loss, visuospatial damage, orientation difficulties, hoarding, pacing and aggression towards family members.
However, Professor Peisah conceded that if it was found the facts recorded in the medical reports or affidavits were not accurate, then her conclusions may well be different.
I do not accept the following facts recorded in Dr Joseph’s January 2016 report, which were relied upon by Professor Peisah.
First, the report stated that Bozica was aggressive towards her family. However, there was virtually no evidence of Bozica being aggressive. In one affidavit, Judy stated:

Darryl’s evidence was that to his observation, “there was nothing to suggest that [Bozica’s] mental capacity had deteriorated in any significant way. In addition, she was relatively independent and able to look after herself physically at the time”. During cross-examination, Darryl was taken to Dr Joseph’s report dated 14 January 2011 that commented that Bozica was suffering from memory problems. However, Darryl maintained that, to his knowledge, it was not the case that Bozica had dementia at that point, nor in July 2016 when the second will was signed. Similarly, Michelle was not challenged on her evidence that her mother was mobile and relatively independent, and that her previous bowel surgery had caused minor incontinence, which she managed herself. I consider it telling that Judy stated in 2016 that her mother “had to wear nappies”, without disclosing that Bozica had had bowel surgery that could cause incontinence. Again, I consider Judy was trying to exaggerate Bozica’s conditions to assist with a finding of want of capacity.
Therefore, as at 11 January 2016, the only reliable evidence (as opposed to Judy’s assertions) Dr Joseph had, upon which to base a diagnosis of “early dementia”, was the RUDAS score of 16/30 and that Bozica appeared depressed. However, at that time, Dr Joseph considered it more important to treat Bozica’s depression first to see whether that was the cause of the dementia-like symptoms.
Professor Peisah’s evidence was that a score of 16/30 might suggest moderate dementia in a patient. However, she further explained that the interpretation of RUDAS scores was “nuanced”, and any inferences drawn from them were “approximate”. Moreover, Professor Peisah explained in detail that depression can compound the appearance of cognitive decline and can impact on a RUDAS score, as can the time of day when the test is administered. There was no evidence of the level of Bozica’s depression. Similarly, there was no evidence of the time of day Bozica undertook the RUDAS test.
With no disrespect to either doctor, I consider Dr Joseph’s recorded diagnosis of “early dementia” and Professor Peisah’s diagnosis of “moderate dementia” in early 2016 were based on facts not demonstrated to be accurate, and that a different diagnosis would likely have been made, had the doctors been told that Bozica was reasonably physically independent, did not exhibit changed behaviours such as aggression towards family, pacing or hoarding, and proceeded on the basis that Bozica’s predominant issue in January 2016 was depression.
If I am wrong, and Bozica did have some level of dementia when signing the 2016 will, it does not necessarily follow that the will would not be admitted to probate. As accepted by Professor Peisah, it is possible that a person suffering from dementia can still have capacity to enter into a will: see eg Carr v Homersham (2018) 97 NSWLR 328 at [15] (Basten JA, Leeming JA agreeing).
I note that the provision as outlined in the 2016 will was consistent with Bozica’s previously expressed intentions, including, most relevantly, her 2001 will. Because of the materials, to which she was confined, Professor Peisah did not take into account, during her assessment the 2001 will, the relevance of Bozica continuing a previously expressed wish or will. However, based on my findings about the 2001 will, I consider that its contents assist in determining other aspects of Bozica’s capacity with respect to her 2016 will.
Further, as discussed below, the contents of the will were not complicated and were based on factual matters known to the siblings and, I infer, known and intended by Bozica.

In cross-examination, Judy tried to say that “all of us” in the message meant the three siblings, despite the reference to only “Michelle and me”. I do not accept her evidence in cross-examination. I consider it apparent on the face of the message that it only referred to Michelle and Judy receiving cash and food, which is consistent with Michelle and Darryl’s evidence. This was another example of Judy’s affidavit evidence supporting her case, rather than being wholly accurate.
Judy also accepted that her parents helped care for her children. Further, despite Judy’s evidence, as noted above, I have also found that Bozica worked in Judy’s childcare business from about 1997 to around 2013 as a volunteer, which was a benefit to Judy.
Therefore, I consider the reference in the will to Judy and Michelle receiving financial and other support was accurate.
I also consider the will was accurate in recording that Darryl assisted in the house. The extent to which Darryl contributed money was unclear, but he was not challenged on his affidavit evidence that he did so. Judy did not live in the house and therefore she would have had more limited knowledge of what occurred there. She conceded “I have never seen it. I have never been told it.”
Further, Judy accepted that she knew about her parents’ court case involving a car accident. Further, her evidence was that Darryl and her parents had told her about Darryl helping with the legal fees for that case. Therefore, it is difficult to understand why Judy submitted that the reference to the court case assistance in the 2016 will was not accurate.
Consequently, I consider Judy was aware of the facts stated in the 2016 will. I consider those facts were also within the knowledge of her parents.
I also consider that Judy had been told of her parents’ intentions concerning their estate before the 2016 will was made. She stated she did not recall discussing a will in 2016. However, that was inconsistent with Dr Joseph’s January 2016 report referring to such a conversation, which Judy must have conveyed.
This conclusion does not change because in 2018, Darryl sent a message to Judy about seeing a solicitor:

Darryl drafted the 2016 will, and he was the sole beneficiary.
However, as the 2016 will repeated a long-standing intention of Mato and Bozica, I do not accept that its creation rose was “suspicious”.
Darryl, Michelle and Darryl’s current wife, Zlata Velat, all gave evidence about the day on 3 July 2016 when Mato and Bozica signed the 2016 will. They all gave evidence that Judy was invited to attend, but did not. Judy denied she knew about the meeting. At the time, there was no suggestion that the siblings’ relationship was anything other than harmonious. I consider it highly unlikely that Judy was not told of the meeting and family meal scheduled for that day.
As noted above, Mato and Bozica gave Darryl instructions of the words to include in the document. Darryl took notes, but did not speak. He then typed up the document, and his parents read it and then signed it. As with the 2001 will, Darryl’s evidence was that his parents gave instructions in a combination of English and Croatian, and he transcribed the will in English. This was corroborated by Michelle, who further confirmed that her parents had no trouble reading the document.
I accept that Michelle and Zlata witnessed their signatures; they were not challenged on that evidence. Zlata’s evidence was that because Judy did not come, “the parents ask[ed] me … to sign the document instead of her. So, I would say I was a random witness, just by chance.” Zlata did not give evidence of being present or conscious of the discussion about the document, as she was cooking the meal for the family.
Judy’s evidence was that she never saw the 2016 will until these proceedings. While I consider that unlikely, even if it was correct, Judy accepted that she organised to go to her parents’ home shortly after the date, on which they signed the will, but denied that was the purpose of the visit. I consider it more likely than not that she did see the will and had no issue with its contents, because her parents had communicated their intention to her previously. Further, Judy knew that her mother was interested in making a will, as recorded in Dr Joseph’s report in January 2016.
I consider her parents had a long-standing intention for Darryl to inherit their estates for the following reasons.
First, the 2001 will clearly provided that Darryl was intended to be the sole beneficiary, should he be alive at the time of his parents’ deaths. While not critical to the determination of Bozica’s intention, I consider it more likely than not that Judy was aware of the 2001 will. As indicated above, I have no doubt that Mato and Bozica wanted a will prepared before they left for overseas. As Judy was to be the only child remaining in Australia, I consider it more likely than not that her parents told her about the existence and location of that will.
Secondly, I also consider it likely that Bozica and Mato discussed their testamentary intentions with their children. As noted, the siblings appeared to get along, and their parents were kind and generous to them all. I do not consider they would have communicated their intentions to Michelle and Darryl, and not to Judy. This is consistent with Zlata’s unchallenged evidence, which I accept, that she understood that the siblings had agreed on the terms of the document: “… all three children were being in agreement with the parents in making this kind of document”.
Thirdly, the only non-family witness who spoke with Bozica about her estate was Ms Lauscaran, whose evidence was that during conversations she had with Bozica between about 2008 and 2012, Bozica wanted her Croatian assets to be passed to her children in equal shares. There was no evidence about any such assets being in existence at the time of the 2016 will or her death. In any event, those conversations were before the 2016 will, which only listed assets in Australia. Further, no non-family witness gave evidence about being aware of any gifts or assistance Mato and Bozica had provided during their lives, despite the siblings’ uniform evidence that they did receive such assistance. Therefore, I do not consider the conversations with Ms Lauscaran assist Judy’s case.
Fourthly, above I have found that the various explanations provided in the 2016 will were substantially accurate.
Fifthly, as noted above, in January 2016, Judy took Bozica to see Dr Joseph, who recorded at that time “There is no will that has been made.” However, it is not possible to know whether Bozica or Judy gave that information to Dr Joseph. Further, it was accurate that there was no formal will at the time, because the 2001 will had not been witnessed by two non-beneficiaries. I do not place weight on that statement by Dr Joseph, who obviously did not know the truth of it. There is no evidence that Darryl was aware of Dr Joseph’s advice at the time of suggesting a “neuropsych” assessment for testamentary capacity, nor that Judy progressed such an assessment.
Sixthly, another reason why Judy may have paid little attention to discussions about her parents’ estate, was because at no time before her mother’s death did Judy appear to have any interest in any inheritance. Her evidence was that she was very wealthy, with a childcare centre business and many properties.
This is consistent with her signing a “declaration” on 18 February 2021, with her signature witnessed by Darryl, and Judy witnessing Darryl’s signature. The declaration included:

The declaration was the subject of various submissions. Darryl originally pleaded that it gave rise to an “equitable estoppel”, but when, in closing submissions, Darryl’s counsel was asked about the nature of the estoppel, the allegation of estoppel was withdrawn and an oral application was made for leave to amend the pleading to add a claim that the declaration amounted to a contract, which Judy had breached. That late application was refused with reasons given in a separate judgment.
Nevertheless, I consider the declaration is an important document in relation to Judy’s credit. In February 2021, Judy was prepared to place her signature on that document with the formality of the signatures being witnessed. Her evidence surrounding signing it was inconsistent.
In an earlier affidavit, Judy stated that Darryl commenced reading the declaration to her to the effect that she was giving to him her inheritance of their parents’ home and contents, and she was “shocked that he also wanted the contents [of the house], as I wanted some of my mother’s personal belongings as a memory of my mother”. She claimed that, upon an oral assurance that Darryl would allow her to have those memorabilia, she signed the document without reading it. She claimed that she was “very vulnerable and sensitive” because of an operation on an aneurysm in May 2020.
In a later affidavit, Judy’s evidence was that Darryl raised with her his concerns about Michelle’s (unidentified) attitude to their parents’ estates. He then asked Judy whether she would be “willing to sign your share [of Bozica’s estate] over to me”. Judy immediately responded, “Sure” and then signed the declaration, without reading it because she did not have her glasses.
However, I do not accept Judy’s evidence accurately recorded what occurred. On its face, the document contained many more words than those she claims Darryl read her, and also left space for Michelle’s signature. Had Darryl been concerned about Michelle, then it would make no sense that Michelle would sign a document concerning only Judy’s entitlement. Those features would have been apparent, even if she could not read the detail. Further, the sentiment in the declaration concerning her entitlement to any inheritance was in accordance with her then-wishes.
I find that Judy knew the details in the declaration she was signing. I do not accept that she was vulnerable, such that she could not understand, or that Darryl placed any pressure on her to sign. Again, at that time, there was no evidence that the siblings’ relationship was anything other than harmonious. For example, Judy’s daughter, Daniella, considered it was.
As to the contents of the 2021 declaration, I consider it accurate or close to accurate.
I accept that at some point, likely to have been in 2016, whether or not it was 11 July, the siblings met and discussed the future care needs of their parents, as recorded in the first two paragraphs of the declaration. There is no doubt that the siblings were united on an intention to have their parents remain in their home until their deaths. Further, there is no doubt that neither Judy nor Michelle offered to live in the home to provide daily care. By 2021, the siblings knew that Darryl had obtained a carer’s pension, and therefore he was the full time carer of his parents.
Darryl gave unchallenged evidence that he had a conversation with Zlata, who assisted in caring for Mato and Bozica, and that Zlata said “I remember you told me that [Judy and Michelle] aren’t helping care for your parents because they know you are getting the house when they die”. Zlata was also not challenged on such a conversation having taken place and I accept it.
While the declaration speaks of “two considerations” having been discussed, namely Darryl caring for his parents and then either receiving a wage subsidy from his sisters or receiving the whole of his parents’ estate, I do not consider that it matters. On balance, I prefer Darryl and Michelle’s evidence concerning the agreement about their parents’ care. However, there is no requirement to determine its legal effect, as it does not form the basis of any cause of action.
Therefore, I consider that Bozica had an ongoing intention to leave her estate to Darryl, which was known to the siblings. Further, I consider Darryl has proved that Bozica was of a “sound disposing mind”, despite Darryl preparing the 2016 will and being present when it was signed.

In the event that neither the 2001 nor 2016 will ought to be admitted to probate, Bozica’s estate would be dispersed according to the law of intestacy. Darryl would ordinarily be entitled to one third of Bozica’s estate, her estate being split evenly amongst her children: Succession Act s 127(3)(a). This would mean he would receive about $500,000, before factoring in the costs of this litigation, to the extent that those costs might be borne by Bozica’s estate.
Darryl claimed that if he was entitled to a third of Bozica’s estate, an order in his favour for further provision ought to be made pursuant to s 59 Succession Act. During closing submissions, Darryl’s counsel submitted that he ought to be entitled to $1.2 million from Bozica’s estate, that is, an additional $700,000 above his one-third entitlement. No explanation was provided for that quantum.
As Bozica’s son, Darryl is an eligible person, for whom an order can be made: Succession Act s 57(1)(c). While Darryl filed his claim for further provision out of time, Judy consented to the application having been made late: Succession Act s 58(2).
The Court can make a family provision order where it is satisfied, inter alia, that the operation of the intestacy rules in relation to the deceased’s estate would otherwise fail to provide adequate provision for Darryl’s proper maintenance, education or advancement in life: Succession Act s 59(1)(c). Regard may be had to the factors in s 60(2) Succession Act when considering whether to make an order for further provision.
In deciding to make an order for further provision, the Court must be satisfied that an evaluative standard has been met, rather than merely exercising a discretion: Durham v Durham (2011) 80 NSWLR 335 at [81] (Campbell JA).
Darryl bore the onus of justifying his claim for further provision: see eg Blendell v Blendell [2020] NSWCA 154 (Blendell) at [26]-[27] (Meagher, Gleeson and Leeming JJA). It was incumbent on him to disclose to the Court, as fully and frankly as possible, all material and financial circumstances as they were at or about the time of the hearing: DJ Singh v DH Singh [2018] NSWCA 30 at [284]-[291] (Gleeson JA, Leeming and White JJA agreeing). Incomplete or unsatisfactory evidence may permit the drawing of inferences unfavourable to an applicant for provision. Where an applicant’s income and expenditure are not satisfactorily proved, with the result that the Court does not have a broad outline of their financial position, it may be impossible to conclude that such an applicant has been left with inadequate provision: Blendell at [28]-[29].
While the parent-child relationship changes over time, adult children do not cease to be a natural recipient of parental ties, affection or support. However, with respect to the moral obligation a parent owes to an adult child, it is not ordinarily expected that a parent should provide extensive financial support to their child into adulthood. There would be no general expectation, for example, to provide an adult child with an unencumbered house: Bowditch v NSW Trustee & Guardian [2012] NSWSC 275 at [111] (Hallen AsJ), cited with approval in Chapple v Wilcox [2014] NSWCA 392 at [21] (Basten JA).
In circumstances where there is no spouse or other person to assist, and the adult child has been dependent upon the deceased parent, the community may expect provision to fulfil that ongoing dependency after death: Taylor v Farrugia [2009] NSWSC 801 (Taylor) at [58] (Brereton J). However, the extent to which a person is ‘dependent’ on another is a question of degree and fact, and any restrictive attempt to define the term would be inappropriate: Spata v Tumino [2018] NSWCA 17 at [71] (Payne JA, Macfarlan JA agreeing). I draw a distinction between dependency out of genuine need, such as in the case of a disabled adult or a minor child, and the case of an adult with the capacity to otherwise work, should they wish to: see eg Grover v NSW Trustee & Guardian [2015] NSWSC 1048 at [132] (Hallen J).

I do not consider Darryl ought receive further provision for the following reasons.
Darryl adduced limited and unsatisfactory evidence in support of his claim for further provision. He did not provide meaningful evidence as to his future earning capacity. For example, while Darryl gave evidence that he had worked prior to 2017, and then again for a brief time in late 2022 before being injured at work, he did not identify beyond “rough figures” how much he was earning. Further, while Darryl expressed uncertainty about whether he could ever return to work given his “injuries and [his] age”, the documentation he provided only confirmed he lacked capacity to work until 10 March 2025. Darryl was receiving worker’s compensation at the time of the proceedings. He did not provide any evidence of medical documentation or diagnoses suggesting that he would be unable to return to work after 10 March 2025. Such evidence would be both known and accessible to Darryl and he ought to have led it in support of his claim.
Even assuming that Darryl would be unable to work in the future, it would not necessarily follow that further provision ought be ordered. Darryl is married to, and lives with, Zlata. I infer that Darryl’s financial and material circumstances were intertwined with those of Zlata, and the pair share the costs of living and support one another. Accordingly, Darryl ought to have adduced evidence of her financial circumstances: see eg Succession Act s 60(2); Stone v Stone [2019] NSWSC 233 at [155] and [169] (Hammerschlag J, as his Honour then was). Darryl’s evidence was that Zlata had assets in Croatia totalling $139,500, and that she received a weekly pension totalling $484. Zlata variously described herself as “unemployed” and a “pensioner”. At no time was it submitted, nor did the evidence suggest, that Zlata was unable to work. Even if I accepted that Darryl was unable to work in the future, the prime obligation to look after him would fall to Zlata, rather than Bozica’s estate: see eg Taylor at [58] (Brereton J).
Further, Darryl failed to adduce any evidence as to his life expectancy. While there was no express obligation to do so, in Megerditchian v Khatchadourian [2020] NSWCA 229 at [58] (Payne JA, Macfarlan JA and Emmett AJA agreeing), a claimant’s failure to adduce evidence about contingencies or their life expectancy resulted in the “true facts” being “hard to ascertain”. That is the case here.
Darryl adduced evidence that his anticipated weekly expenditure amounted to approximately $1,500. While unclear, it appears that this amount includes the costs, to some extent, of Darryl’s children, who were said to be dependent upon him. Darryl’s children are both adults, aged 19 and 21 respectively. They are in gainful employment as apprentices. Their mother, Gordana, gave evidence that both children were independent of Darryl, earning their own incomes and paying taxes. I consider Darryl’s choice to support his sons is not a necessity that is relevant to the question of further provision.
Darryl made no submissions that he lived with his parents because of a genuine need, and I do not accept he did so. Instead, he appeared to be living there voluntarily and contributed to the household and building.
However, it is also appropriate to consider the financial benefit Darryl received in the form of rent-free accommodation while his parents were alive: see eg Frank v Angell [2024] NSWCA 264 at [82] (Stern JA, Bell CJ and Gleeson JA agreeing). Darryl lived with his parents, without paying rent, for the vast majority of his adult life, to his benefit. The current value of living in the house based on Darryl’s evidence was $1,300 per week. He has received that benefit for many years.
Darryl adduced various evidence, much of which was unchallenged, to the effect that he had made various financial and non-financial contributions to his parents’ wellbeing and household over the course of their lives. I accept that Darryl contributed various sums to his parents’ benefit, including assisting with the costs of litigation concerning Bozica’s car accident and making improvements to her property. I further accept that Darryl provided Bozica care and support from 2017. However, the extent of Darryl’s contributions is just one factor in a holistic assessment of all the circumstances that may be considered under s 60(2) Succession Act: Burke v Burke [2015] NSWCA 195 at [124] (Emmett JA). Taken at its highest, I consider that the value of any contributions that Darryl made were outweighed by the benefits he received from his parents over the course of his adult life, particularly in the form of free accommodation.
Judy’s counsel submitted that Darryl’s conduct following Bozica’s death constituted “harassment” of Judy via Facebook and text message, being conduct subsequent to the deceased’s death that can and ought to be considered in determining Darryl’s claim, referring to s 60(2)(m) Succession Act. While I accept that Darryl’s Facebook posts were ill advised, I do not accept that they amounted to “harassment”. Darryl and Judy were evidently in dispute following their mother’s death, and the relationship between them deteriorated. I was not referred to any authority where similar conduct between siblings/beneficiaries after the deceased’s death has had any impact on an entitlement that otherwise existed. Conduct that goes as far as “toxic and threatening emails” sent by an applicant to a defendant could weigh against a claim: Re Gooley [2022] NSWSC 734 at [75]-[79] (Lindsay J). However, that conduct was in the context of an applicant with a background of illegal drug use and criminal offending, and emails that threatened family members. The present circumstances are not equivalent. In any event, irrespective of whether this conduct was disentitling, I do not accept that Darryl is entitled to further provision.
Based on the above, if it were necessary, I would decline to make an order under s 59 Succession Act.

Doric v Orec

At a glance

Court

Decision date

Before

Catchwords

Source

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Catchwords

Judgment

JUDGMENT

2001 purported will

Was the 2001 will a “testamentary instrument”?

Circumstances leading to creation of 2001 will

Bozica’s level of English in 2001

Language used in 2001 will

Conclusion

2016 purported will

Legal principles

Capacity

Contents of 2016 will

Suspicious circumstances?

Language ability in 2016

Drafting by Darryl

Conclusion on capacity

Darryl’s claim for additional provision

Application

Costs

Orders

Parties

Legislation Cited (2)

Cases Cited (3)