The Estate of Mimi Milka Jaksic (Berger)

Catchwords: SUCCESSION – Probate and administration – Missing will – Presumption of revocation by destruction – Rebuttal of the presumption – Where the will makes a careful and complete disposition of the testator’s property – Where the codicil nonetheless revives the will – Succession Act s 8(2) – HELD –The presumption of revocation does not apply – The codicil forms an alteration of the will – Probate granted to the plaintiff

Legislation Cited: Succession Act 2006 (NSW) ss 6, 8, 11 and 5

Cases Cited: McCauley v McCauley (1910) 10 CLR 434
Sugden v Lord St Leonards (1876) LR 1 PD 154

Category: Principal judgment

Parties: Dusko Dundjerski (Plaintiff)
Radmila Milanovic (First Defendant)
Ljiljana Jaksic (Second Defendant)
Branko Jaksic (Third Defendant)
Ankica Jaksic-Stevanovic (Fourth Defendant)
Branka Jaksic-Repac (Fifth Defendant)
Natasa Jaksic-Ristovski (Sixth Defendant)

Representation: Counsel:
S Chapple SC / D Yazdani (Plaintiff)
L Ellison SC / P Wallis (Fifth Defendant)
Solicitors:
H+A Legal (Plaintiff)
Novakovic Lawyers (Fifth Defendant)

File Number(s): 2022/00366795

Publication restriction: Nil

JUDGMENT

Background

1. Mimi Milka Berger (née Jaksic) was born on 19 September 1936 in Kosovo, Serbia, immigrated to Australia in about 1959 and died in Sydney, Australia on 10 November 2022 aged 86 years. She was an artist. For some years, she was married to George Martin James Berger. They divorced and she reverted to her maiden name, Jaksic. I will refer to her as the deceased or Mimi – in the latter case without intending disrespect – it being the way the interested parties in this dispute refer to her.

2. Her parents predeceased her. She was not married at the time of her death, having earlier been divorced. She had no children. She had six siblings, each of whom predeceased her, including a sister who, like her, did not have children. The following is her family tree.

3. She left an estate worth in excess of $24 million as at 28 February 2025, comprising predominantly valuable real property but also cash. She also left her art collection.

4. On 22 May 2015, she signed a will (the Will) by which she appointed her niece Bozica Dunderski (Bozica) (the daughter of her sister, Marija Drajulic) and her grandnephew Dusko Dundjerski (Dusko) (Bozica’s son), the plaintiff, to be her executors and trustees, and under which they will take all of her real property, household contents, bank accounts and the residue of the estate.

5. The original Will cannot be found, but a copy shows that it complied with the formal requirements of s 6 of the Succession Act 2006 (NSW) (the Act). References below to sections are, unless expressly stated otherwise or the context indicates differently, to sections of the Act.

6. On 14 June 2022, she signed a document headed “Codicil to my last will and testament of Mimi Jaksic Berger” (the Codicil) which provides:

1. I leave my real estate located at 113A Commonwealth Street Surry Hills NSW to Srdja and Gordana Jankovic of XX XXXX Road Rockdale NSW.

2. I hereby confirm and republish my Last Will kept by Marc O’Brien, of Redmond Hale Simpson solicitors, in all respects other than those mentioned here.

IN WITNESS WHEROF, I have signed my name on this 14th day of JUNE, 2022.

7. The Codicil is unwitnessed.

8. Mr Srdja (Srdja) and Mrs Gordana (Gordana) Jankovic (together the Jankovics) were close friends of the deceased. Under the Codicil they will take the deceased’s property at 113A Commonwealth Street, Surry Hills.

9. The first through fifth defendants are her brothers’ children: Radmila Milanovic, Ljiljana Jaksic, Branko Jaksic, Ankica Jaksic-Stevanovic, and Branka Jaksic-Repac and Natasa Jaksic-Ristovski. The fifth defendant, Branka Jaksic-Repac (Branka) is the only active defendant in these proceedings.

10. If:

11. both the Will and Codicil are given effect to (as Dusko contends), the Surry Hills property referred to in the Codicil will go to the Jankovics and the residue of the estate will go to Bozica and Dusko;

12. only the Will is given effect to (as Dusko contends in the alternative), the whole residue will go to Bozica and Dusko;

13. neither is given effect to (as Branka contends), the estate will go on intestacy. Bozica will take 1/10th and various others will take shares including Branka who will take 1/10th. Dusko will not participate.

14. On 27 July 2023, Bozica signed a renunciation of probate.

15. The defendants, on 22 May 2023, caused a caveat to be lodged preventing probate being granted to Dusko.

16. By Amended Statement of Claim filed 22 November 2023, Dusko seeks the following relief:

17. an order that the caveat lodged on 22 May 2023 by the defendants be withdrawn;

18. an order pursuant to s 8 of the Act that the Codicil was intended by the deceased to form an alteration to the Will;

19. an order that probate of the copy of the Will of the deceased and the Codicil be granted to the plaintiff limited until the Will is proven;

20. in the alternative to (3), an order that probate in solemn form of the copy of the Will and the Codicil be granted to the plaintiff;

21. in the further alternative, an order that probate in solemn form of the copy of the Will be granted to the plaintiff; and

22. an order that the defendants pay the plaintiff’s costs of this application.

Testamentary Instruments before the Will and Codicil

14. The deceased made a number of testamentary instruments before 2004 which, the Court was informed, are immaterial to the present controversy.

15. The following wills were made by the deceased from 2004 and before the Will and the Codicil:

16. 28 May 2004: the existence of this will is established by a letter dated 15 August 2007 from solicitors to the deceased and a handwritten note by a solicitor stating that it was handed to her on 16 August 2007 and she destroyed it. There is no copy of it in evidence.

17. 26 September 2007: a copy of this will is in evidence. A solicitor’s letter dated 11 March 2025 records that the original was provided to the deceased. This will provides for a monetary gift to the Jankovics and for the remainder of the estate to go to Serbian Orthodox Church institutions. The original of this will has not been found.

18. 16 November 2009: a copy of this will is in evidence. The same solicitor’s letter records that the original was provided to the deceased. This will provides for one of her properties to go to friends on the condition that they provide her with nursing care until the date of her death, or if she does not require such care. It provides for a monetary gift to the Jankovics and for the remainder to go to the Serbian Orthodox Church. The original of this will has not been found.

19. 20 September 2013: a firm of solicitors confirms that the original of this will is still held by them. A copy of this will is in evidence.

20. 30 January 2015: the original of this will was uplifted by the deceased from a firm of solicitors on 5 February 2015.

21. 13 February 2015: there is in evidence a torn-up original which has been put together with sticky tape. The evidence does not reveal who tore it up or when, or who put it together or when. The front page bears the name of a firm of solicitors Nicole Leggat and Associates of Double Bay. Mr Bradley Campbell (Campbell), a solicitor who practised at that firm at that time, gave evidence that on 6 February 2015 he attended the deceased’s home to obtain instructions from her in relation to her will and that he prepared this will, which was signed by her in his presence on 13 February 2015. The evidence does not reveal what happened to the original. For the purposes of preparing this will, Campbell used an instruction sheet which had a series of questions which he got her to answer. One question was “Is there an existing Will, if so, please attach to instruction sheet”. The answer written down is “no”. The additional handwritten notations of Campbell are “(Had one but tore up) NB. Revoke all previous”.

The Will

16. Reference is made below to various legal practitioners who gave evidence in this case. Each was cross-examined and was plainly a credible witness. I accept their evidence.

17. On or about 11 May 2015, the deceased phoned Campbell and said words to the following effect:

Mimi: I want to change my will. I want to give all paintings to my niece’s son, Dusko Dundjerski, and give everything else to Dusko and my niece, Bozica, in equal shares. I also want to appoint Dusko and Bozica as the executors of my estate. Bozica’s phone number is XXXXXXXXXXXXX41

18. On 22 May 2015, the deceased attended Campbell’s office and signed the Will, which was duly witnessed. Campbell says he does not recall handing over any original documents or retaining any original documents after the signing. He left the firm on 31 March 2016 and did not have access to any files of the firm after that.

19. Bozica gave affidavit evidence. She was not cross-examined. She says that in about 2015 the deceased told her that she had prepared a new will and was giving all of her properties to Bozica and Dusko.

20. In about February 2017, the deceased called the solicitor Nicole Leggat (Leggat) of the firm Nicole Leggat and Associates, and requested a copy of the Will. It was sent to her under cover of a letter dated 1 March 2017. I interpolate that Leggat also provided legal services for the deceased in relation to leasing her properties.

21. Mr Marc O’Brien (O**’**Brien) is a solicitor who at all the relevant times practised at the firm Redmond Hale Simpson. In about September 2018, the deceased met with O’Brien. She instructed him to request her lease files and testamentary documents from Nicole Leggat and Associates. She told him that Leggat was her prior lawyer. O’Brien received a file from Nicole Leggat and Associates in about September 2018. The file contained a copy of the Will but not the original, O’Brien contacted the deceased by telephone and a conversation to the following effect took place:

Mr O’Brien: I have received the file from Nicole Leggat and Associates, and it contains a copy of your will dated 22 May 2015, which gives your art works to Dusko Dundjerski and the remainder of your estate to Dusko Dundjerski and Bozica Dunderski as joint tenants. Is that your last will?

Mimi: Yes

Mr O’Brien: I’ve got a copy of your will in the file, but I could not locate the original. Do you know where the original is?

Mimi: I believe the original is with Nicole Leggat and Associates. I will contact them to see where it is.

22. O’Brien recorded a copy of the Will in the firm’s safe custody file. That copy was the only will of the deceased held by his firm, and he did not receive any further instructions from the deceased in relation to her wills.

23. Ms Maria Lazaros (Lazaros) was the practice manager of an accounting firm who was acquainted with the deceased in a professional capacity. She gave evidence of a conversation between her and the deceased on 16 December 2018 during which the deceased told her “if anything happens to me you need to call Dusko. He will look after everything”. She gave Lazaros Dusko’s details. She says that the deceased repeatedly told her that she was leaving Dusko everything and that he would be in charge of everything.

24. Mr Dragan Radovic was a close friend of the deceased for 20 years before she died. He gave evidence of a conversation with the deceased, the date of which he could not recall, in which she told him:

I have prepared my will. I have given all my artworks to Dusko, and all my properties to Bozica and Dusko to share. I want to leave the artworks just to Dusko because he has an interest in art and has always praised my work.

25. In about 2017, she told him she had sent a copy of her will to Switzerland so Bozica and Dusko have a copy.

26. Bozica says that in March 2017 she received a copy of the Will in the mail. She made one copy of it to give to Dusko.

27. Dusko too gave affidavit evidence. He was not cross-examined. Bozica gave him a copy of the Will in 2017. He called the deceased and told her that he had received a copy of the Will and she told him “please make more copies and keep them in a safe place”.

28. In August 2018, the deceased was hospitalised. She apparently gave Dusko’s name to the hospital, as her next of kin and he came to Australia after the hospital phoned him. Whilst he was visiting the deceased in the hospital, she told him: “If something happens to me call Marc O’Brien, he is my lawyer. He is in Kogarah. He has my last will.”

29. In about September 2018, Leggat received an authority from Redmond Hale Simpson to release to them the deceased’s file in relation to her wills. She sent all documents held by her firm in relation to the wills of the deceased to Redmond Hale Simpson. She has since undertaken a thorough review of her electronic and hard copy files and cannot locate the original Will or any record of it being provided to the deceased.

30. It would have made no sense for the deceased to have sent the Will to Bozica, to have told Dusko to have made copies, to have said that her will was with O’Brien or to have given authority for Redmond Hale Simpson to release her file in relation to her wills had she, by then, destroyed the Will.

The Codicil

31. Srdja and Gordana gave evidence and were cross-examined. They were credible witnesses. They lived near the deceased and had a cultural and language connection with her. Srdja helped the deceased in various ways, including with repairs to her house.

32. In May 2022, the deceased was hospitalised after breaking her arm. Srdja recounted having had the following conversation with the deceased (in the Serbian language) while she was in hospital:

Mimi: I want to tell you something. You know that I consider you and your family as my family, even if we are not blood related, we are spiritually connected.

During these almost thirty years of our friendship, you were always here for me. You helped me with whatever I needed and cared for me. You are my closest and most trusted friends here in Australia.

You take really good care of me, helping me with small issues as taking garbage bin to the street for rubbish collection and shopping to the big one as helping with my business to saving my life, twice. As a sign of my appreciation for your friendship and your care of me, I decided to leave to you and your wife the property 113A Commonwealth Street, Surry Hills. I figure out that that property will be ideal for you and your family. Neso can open surgery and pay you rent, so all of you will have benefits from it.

Srdja: Mimi, thank you for your kind words and generous offer, that means a lot, we are spiritual family indeed, you christened our children, and we are treating you as a family member. That is enough for us, you do not need to leave us anything, you need to concentrate now to get better and healthy again.

Mimi: I know, but this is what I want. This is my decision. I want to be honest and righteous in front of my god. I know you will keep taking care of me and help me as you did until now.

As soon as I am out from the hospital, I will go and update my will. My last will is with Marc O’Brien and they moved now from Kogarah to Brighton. Find me a solicitor in Rockdale who can write the will. I already decided not to use Marc O’Brien anymore, it took him two years to complete the lease agreement for Crown Street Boarding House. I will withdraw my dealings with him.

I already told Bozica and Dusko about my decision. They completely support and praised it. They said to me: “Seko [the nickname Mimi’s family used for her], he deserves it, and we will honour your decision”.

Srdja: Thank you Mimi, but there is no need for that. As you said, when you are out of the hospital, we will deal with that.

Mimi: OK. This is settled now, let’s talk about something else now.

33. In the second week of June 2022, on a visit to the deceased in hospital, she told Srdja that she had decided to leave the Surry Hills property to him and Gordana and that Dusko was the executor of her Will. She asked him to prepare a “Declaration Form” and said she would sign it, she said: “That is the best solution for yours and my peace of mind”. Srdja agreed to prepare the form. He said he would find the right form on the internet.

34. The deceased was transferred to a different hospital and Srdja visited her on 12 June 2022. She asked him if he had found and prepared the declaration for her to sign. He told her it was called a codicil and was used to update and amend a will, and that he had prepared it and would bring it next time.

35. He visited her again on 14 June 2022 and handed her the form. She read it and then said:

I will sign it for you so that you have proof of my decision, but, sorry, I cannot use hospital staff to witness it. I do not want them to know that I have properties. I do not trust them to know that I have properties. They can charge me for all my staying in the hospital. You saw that they already charge me $365.00 to remove cast from my arm. I heard a number of stories where older people lost their properties when not being careful. I am out of the hospital in two weeks and we will go to the solicitor and I will amend my will with my decision to leave to you and Gordana the house at 113A Commonwealth Street Surry Hills. Is this OK with you?

36. The deceased signed the Codicil and handed it back to Srdja.

37. Soon after this, Srdja located a solicitor, Mr Gordan Bryant (Bryant) of FC Bryant Thomas & Co to help her with her will. Srdja drove her to an appointment with Bryant, but did not go into his office. Bryant deposed to the following conversation with the deceased on 18 July 2022.

Bryant: Do you have a current will?

Mimi: Yes

Bryant: Do you know where it is located?

Mimi: It is held by Marc O’Brien at Redmond Hale Simpson

38. The deceased asked Bryant to obtain all her papers from O’Brien. He prepared an authority, which she returned, signed, to his office on 27 July 2022 and which he, in turn, sent to Redmond Hale Simpson on 28 July 2022. He prepared a new will for her and sent her a draft on 4 August 2022, but she never returned to execute it. The draft is in evidence. It is a very simple document which appoints Dusko as her executor, gives him her artwork, gives the Surry Hills property to the Jankovics and gives the rest to Bozica and Dusko.

39. Srdja gave evidence that the deceased told him she was irritated with Bryant because he wanted to talk about establishing a family trust, and that she had asked for another solicitor. Bryant’s firm nominated another solicitor. Apparently, the deceased was waiting for arrangements to be made for her to meet with the solicitor but died on 9 November 2022, without signing any new will.

40. Gordana gave evidence of a conversation with the deceased sometime in July 2022 in which the deceased told her that she was leaving the Surry Hills property to them. The deceased told her that she had told Dusko and Bozica and they completely agreed. The deceased said of Dusko and Bozica: “They are my beneficiaries. They know. I will see a solicitor to update my will. It is with O’Brien solicitor” (sic).

41. It would have made no sense for the deceased to have signed the Codicil, referring to the Will or to have told Bryant and Gordana that the Will was with O’Brien had she previously destroyed it.

The Law

The Act

42. The following are the pertinent sections of the Act.

3 Definitions

(1) In this Act—

…

will includes a codicil and any other testamentary disposition.

6 How should a will be executed?

(1) A will is not valid unless—

(a) it is in writing and signed by the testator or by some other person in the presence of and at the direction of the testator, and

(b) the signature is made or acknowledged by the testator in the presence of 2 or more witnesses present at the same time, and

(c) at least 2 of those witnesses attest and sign the will in the presence of the testator (but not necessarily in the presence of each other).

8 When may the Court dispense with the requirements for execution, alteration or revocation of wills?

(1) This section applies to a document, or part of a document, that—

(a) purports to state the testamentary intentions of a deceased person, and

(b) has not been executed in accordance with this Part.

(2) The document, or part of the document, forms—

(a) the deceased person’s will—if the Court is satisfied that the person intended it to form his or her will, or

(b) an alteration to the deceased person’s will—if the Court is satisfied that the person intended it to form an alteration to his or her will, or

(c) a full or partial revocation of the deceased person’s will—if the Court is satisfied that the person intended it to be a full or partial revocation of his or her will.

(3) In making a decision under subsection (2), the Court may, in addition to the document or part, have regard to—

(a) any evidence relating to the manner in which the document or part was executed, and

(b) any evidence of the testamentary intentions of the deceased person, including evidence of statements made by the deceased person.

(4) Subsection (3) does not limit the matters that the Court may have regard to in making a decision under subsection (2).

…

11 When and how can a will be revoked?

(1) The whole or any part of a will may be revoked but only—

…

(e) by the testator, or by some person in his or her presence and by his or her direction, burning, tearing or otherwise destroying the will with the intention of revoking it, or

…

15 How a revoked will may be revived

(1) A will or part of a will that has been revoked is revived by re-execution or by execution of a will showing an intention to revive the will or part.

…

Presumption of Revocation in Cases of Lost Wills

43. If a will was last known to have been in the testator’s possession but upon his or her death, it cannot, despite a diligent search, be found, a rebuttable presumption (the presumption) arises that the deceased destroyed the will animo revocandi (ie. intending to revoke it). The presumption will be rebutted where other facts (or inferences drawn from them) raise, on the balance of probabilities, a higher degree of probability to the contrary: McCauley v McCauley (1910) 10 CLR 434 at 438, 440. The contrary can be either as to the destruction itself or as to the presence of intention to revoke.

44. The authorities have identified factors which may be relevant. In the case of destruction itself, one such factor can be the terms of the will.

45. If the will makes a careful and complete disposition of the estate (as opposed to being, say, a “hasty expression of a passing dissatisfaction” with members of the testator’s family), and no other circumstances point to possible destruction, the presumption of destruction is significantly weakened: Sugden v Lord St Leonards (1876) LR 1 PD 154 at 176.

46. The type of physical arrangements the testator had for keeping the will may be relevant to whether destruction was animo revocandi. If the testator was likely to have taken proper care of the will, it was in their possession when they died and cannot be found after their death, this may strengthen the presumption that the presumed destruction was animo revocandi.

47. But these examples are not part of a checklist through which the Court must go. All of the circumstances must be examined. The strength of the presumption to start with and what is probative and to what extent, in the exercise of determining whether it has been rebutted, will depend on the whole of the facts and inferences properly drawn from them.

Branka’s Position

48. In the written outline of submissions filed on behalf of Branka before the hearing, her only contention was that the presumption applies and has not been rebutted, so that the deceased died intestate. The submissions paid no attention to the possibility that the Codicil revived the Will, even if the presumption was not rebutted. This is perhaps explained by a misapprehension that the Codicil had not been signed. In the submissions it is referred to as the “unsigned purported Codicil of June 22” (this was corrected in a subsequent version of the submissions, after the Court drew it to counsel’s attention).

49. The submissions did however put, (presumably as a consideration eroding the value of the Codicil as a factor in rebutting the presumption) that the Codicil did not describe any will about which there was any evidence that it exists, namely a will held by O’Brien.

50. In oral argument it was put that the Codicil had no effect as a testamentary instrument because the deceased did not intend it to have immediate effect given she intended to have a new will prepared despite signing it. This submission would only have impact if the presumption was not rebutted and the Codicil revived the Will.

51. It is of course the case that if the presumption is rebutted (and the Will given effect to – irrespective of the operation of the Codicil) Branka has no interest in whether the Codicil should, in its own right, be given effect to or not. Only Bozica and Dusko on the one hand, and the Jankovics on the other, have an interest in the answer to that question.

Disposition

52. For the following reasons, Dusko is entitled to succeed and Branka must fail.

53. The evidence does not establish that the Will was destroyed by being torn up or otherwise, so as to satisfy s 11(1)(e) and the contrary was not put.

54. First, I am not persuaded that the presumption applies. This is because the evidence does not establish that the original will was in the possession of the deceased when she died. Plainly she did not think it was. In September 2018, she told O’Brien she believed the original was with Leggat. In about September 2018, the deceased gave authority for Leggat to release her file in relation to her wills to Redmond Hale Simpson. On 18 July 2022, she told Bryant that her Will was held by O’Brien at Redmond Hale Simpson. Sometime in July 2022, she also told Gordana that her will was with O’Brien.

55. Second, if the presumption applies, it has well and truly been rebutted.

56. It was put on behalf of Branka that considerations undermining rebuttal of the presumption are:

57. the original will was on balance given to the deceased by Campbell or another Leggat employee;

58. that the deceased knew that a will can be revoked by destruction; and

59. the deceased had destroyed several previous wills and at least one will (16 November 2009) cannot be found.

60. There is no evidentiary basis to find that the original will was given to the deceased by Campbell or anyone else. Campbell has no recollection of handing to her any original documents or retaining any.

61. There is evidence that the deceased destroyed the 28 May 2004 will and there is evidence that the deceased told Campbell on 6 February 2015 that her existing will had been torn up. This may be a reference to the 30 January 2015 will, which she uplifted on 5 February 2015. It cannot be a reference to the 13 February 2015 will which was not in existence at the time of her 6 February 2015 meeting with Campbell. But none of this points to destruction of the Will by the deceased. All of the evidence points in the opposite direction.

62. The following are the factors which drive to the conclusion that the presumption has been rebutted:

63. the Will is a carefully and professionally drawn document, making full and detailed provision for the disposition of the deceased’s entire estate;

64. the Codicil refers to the Will as if it exists. If, as it was contended on behalf of Branka the deceased knew that destruction of a will amounted to revocation the reference in the Codicil to her Will is irrational. Evidence from various witnesses establishes she was in full control of her mental processes;

65. contrary to the submission put on behalf of Branka, the reference in the Codicil to the reference in it to “my Last Will kept by Marc O’Brien, of Redmond Hale Simpson Solicitors” is manifestly one to the Will. There is no other candidate that satisfies this description. Added to this, is the deceased’s references to it being her will; and

66. the Codicil, read together with the Will reflect the deceased’s intentions stated on a number of occasions that the Jankovics would get the Surry Hills property and Bozica and Dusko the rest.

67. Third, the Codicil has testamentary effect and revives the Will even if it had been revoked.

68. I am satisfied that the deceased intended the Codicil to form her Will or an alteration to her Will within s 8(2). If the Will had been destroyed animo revocandi, the Codicil revived it. Either way, there is no room for the presumption to have operated.

69. The only reason she did not comply with the formalities for the Codicil was a concern that the hospital staff would come to know of her properties and that she would be charged for staying in the hospital and might lose her properties. She told Srdja that she would sign the document for his peace of mind. This establishes that she intended the terms of the Codicil to have testamentary effect.

Conclusion

63. The Court makes the following orders.

64. The caveat lodged on 22 May 2023 be withdrawn.

65. Pursuant to s 8 of the Succession Act 2006, the codicil dated 14 June 2022 was intended by Mimi Milka Jaksic Berger to form an alteration of her will dated 22 May 2015.

66. That probate in solemn form of the copy of the will dated 22 May 2015 of Mimi Milka Jaksic Berger and the codicil dated 14 June 2022 is granted to the plaintiff.

67. The plaintiff is to bring in Short Minutes reflecting the outcome.

68. I will hear the parties on costs. Any party wishing to make a submission on costs is to do so in writing (not exceeding two pages) emailed to the other party and to my Associate within seven days after the delivery of this judgment. Unless I inform the parties otherwise, I propose to deal with costs on the papers.

69. The exhibits are to be returned.

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