Prpic v Mrvcic [2025] ACTSC 477

Procedural history

7. The proceedings were first before the Court on 14 July 2025. Maria Mrvcic did not appear and the matter was adjourned to 21 July 2025. Zelka Prpic was directed to advise Maria Mrvcic of that Order.

8. On 21 July 2025 Maria Mrvcic did not appear. Orders were made for Maria Mrvcic to file and serve her evidence by 18 August 2025, with Zelka Prpic to serve any evidence in reply by 15 September 2025. The matter was adjourned to 22 September 2025 with both Zelka Prpic and the registry to advise Maria Mrvcic of those orders.

9. On 22 September 2025 Maria Mrvcic did not appear and the matter was adjourned to 26 September 2025. Zelka Prpic was directed to advise Maria Mrvcic of that Order.

10. On 26 September 2025 Zelka Prpic was directed to file any affidavit of service by 8 October 2025 and the matter was adjourned to 10 September 2025 with both Zelka Prpic and the registry to advise Maria Mrvcic of those Orders.

11. On 7 October 2025 an affidavit of service was filed. Maria Mrvcic had been personally served with the Originating Application, the Renunciation of Probate and an affidavit of Zelka Prpic affirmed on 26 July 2025. Annexed to the affidavit was an email from the solicitors acting for the executor of the estate to another sibling of the deceased, Mario Prpic in February 2025 advising that they would be filing an application to set aside the caveat. In his reply dated 1 March 2025, Mario Prpic described himself as Maria Mrvcic’s appointed representative and said they would be applying for a stay of any such application.

12. At the listing on 10 October 2025, Maria Mrvcic did not appear and the matter was adjourned for hearing to the Civil Applications List on 17 October 2025.

13. The matter came before me on 17 October 2025. There was no appearance by the defendant.

14. In addition to the service of the documents on 26 July 2025, the solicitor for Zelka Prpic attended at the home of Maria Mrvcic on 16 October 2025 and slid under the front door a letter advising Maria Mrvcic that the matter was listed for hearing on 17 October 2025 and attaching the email from this Court dated 25 October 2025 informing Zelka Prpic’s solicitor of that listing.

15. I was satisfied that Maria Mrvcic had been informed that the matter was listed for hearing on 17 October 2025 and I decided that the hearing would proceed in her absence.

Rule 3069

16. Rule 3069 of the Court Procedures Rules relevantly provides: 3069 Caveat—setting aside (1) If— (a) a person has applied or intends to apply for grant of representation for an estate; and (b) a caveat is in force in relation to the granting of representation for the estate; the person may apply to the court for an order setting aside the caveat. (2) If the person has applied for grant of representation, the application must be made in that proceeding. … (3) If the person intends to apply for grant of representation, the application must be made by originating application, naming the caveator as a defendant. (4) The court may set aside the caveat if it considers that the evidence does not— (a) show that the caveator has an interest in the estate or a reasonable prospect of establishing an interest; or (b) raise doubt about whether the grant of representation should be made. Test for testamentary capacity

17. In Timbury v Coffee (1941) 66 CLR 277 at 283, Dixon J quoted with approval this passage: Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realize the extent and character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. … (per Hood J., In the Will of Wilson (1897) 23 VLR. 197, at p. 199).

18. In Boreham v Prince Henry Hospital (1955) 29 ALJ 179 the High Court held at 180: The proper approach of the Court to the question whether a testator has testamentary capacity is clear. Although proof that the will was properly executed is prima facie evidence of testamentary capacity, where the evidence as a whole is sufficient to throw a doubt upon the testator’s competency, the Court must decide against the validity of the will unless it is satisfied affirmatively that he was of sound mind, memory and understanding when he executed it or, if instructions for the will preceded its execution, when the instructions were given. The evidence

19. The following affidavits were read: (a) Zelka Prpic affirmed on 17 June 2025; (b) Zelka Prpic affirmed on 10 September 2025; (c) Anita Ginoski affirmed on 17 September 2025; (d) Zachary McBride affirmed on 17 September 2025.

20. There was no evidence from the defendant.

21. The four siblings, including the Testator, lived with their parents until their parents divorced in around 1990. The Testator was then around 7 years of age. The father subsequently obtained a court order for the sole custody of the four children.

22. After leaving school, the Testator undertook an apprenticeship as a painter. At the time of his death he was not married and he did not have any children.

23. It was the evidence of Anita Ginoski and Zelka Prpic that until their father died in January 2022, the Testator had not had a relationship with his mother, Maria Mrvcic, for over thirty years. However, after their father’s death, the Testator expressed a desire to reconnect with their mother. They supported the Testator as they thought it might provide him with some comfort during his grief for their father. However the encounter was brief, and the Testator reported to them she was living in poor conditions lacking basic household items.

24. The evidence discloses that the Testator had long standing issues with depression and anxiety for which he regularly sought treatment and support.

25. Anita Ginoski says that the Testator decided to make a fresh start after the death of his father. He moved in to live with her and her family from April 2022 to October 2022 while he was making arrangements to move to Queensland. As I have said, the Will was made on 1 July 2022.

26. Anita Ginoski said that, during this period, she helped the Testator attend consultations with a general practitioner for additional support and is aware that his employer arranged for him to attend free counselling services.

27. In about June 2022 the Testator told her he wanted to make a will to ensure his assets would be distributed in accordance with his wishes. She was aware that he consulted a solicitor. She was sent a copy of the Will at the time.

28. Anita Ginoski observed that, while the Testator lived with her, he exhibited clear and rational thinking, was fully autonomous in his decision making, and maintained control over his personal affairs. This was evident, she said, from his ability to maintain his regular work routine and to arrange the sale of his townhouse.

29. There is in evidence a consultation note made by a general practitioner who recorded, on 21 April 2022, a history of intermittent depression/anxiety for over 10 yrs.

30. A later consultation note made by a general practitioner on 2 June 2022 records that his mental health had improved, the medication was working well and he felt 60 percent better.

31. Zelka Prpic lived in Queensland in 2022 but was in frequent contact with the Testator. She said that the Testator was focusing on getting more exercise and there is in evidence a text message he sent to Zelka Prpic on 23 July 2022 with a photo of a bicycle with the message “bike ride”. He then came and lived with her from October 2022 to April 2023 during which he obtained a job, drove to and from work and attended a fitness boot camp. He also attended on a psychiatrist in Queensland. The testator became homesick and moved back to Queanbeyan.

32. The Testator’s mental health deteriorated leading to a suicide attempt and an admission to a mental health unit in late 2023. By 2024 his mental health had declined significantly and in January 2025 he took his own life.

33. Zachary McBride was the solicitor who drafted the Testator’s will. He is a witness to the Testator’s signature on the Will. It is his evidence that, at the time of signing, he had no concerns for the Testator’s capacity and has no recollection of the Testator being anything but normal.

Findings

34. Proof that a will was properly executed is prima facie evidence of testamentary capacity.

35. The evidence that could be seen as tending in favour of a finding of incapacity is the Testator’s longstanding issue with depression/anxiety. I am not persuaded that these conditions were severe enough, as at 1 July 2022, to displace the presumption. In making this finding I rely on the doctor’s note on 2 June 2022, the solicitor’s evidence and the evidence of his capacity as described by his sisters. These matters collectively outweigh any possible inference of incapacity arising from the Testator’s mental health issues which, at the time the Will was signed, were not severe.

36. If I am wrong in concluding that the presumption has not been displaced, then, for the reasons I have given in the preceding paragraph, I am satisfied that the Testator had testamentary capacity at the time he signed his Will.

37. There is no evidence before me of the other two matters asserted in the caveat - that the Will was obtained fraudulently or that the Testator was suffering under duress from Zelka Prpic and Anita Prpic.

38. Accordingly, I propose to set aside the caveat.

Costs

39. Zelka Prpic sought an order for costs. I propose to make this order as I have made the order she sought in her Originating Application.

Orders

40. The orders of the Court are: (1) The caveat filed by the defendant on 17 February 2025 is set aside pursuant to r 3069(4) of the Court Procedures Rules 2006 (ACT). (2) The defendant to pay the plaintiff’s costs of the proceedings.

I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Acting Justice Balla. Associate: Date: 23 October 2025