​Family Provision & Translated Affidavits raises Judicial Concerns.

Radan Rogic married Ljubica Pacic in April 1989 after knowing her for five months. Radan was 31 and Ljubica was 42 years old. They divorced in December 1992. There were no children of the marriage and no property settlement.

In July 2015 Ljubica died aged 69. In the years between her divorce from Radan and her death, Radan had been married for 13 years, had two children, and was divorced. Radan and Ljubica were on amicable terms following their divorce with Radan one of several people providing care and support to Ljubica at the end of her life.

Ljubica made three wills after her divorce from Radan; he was neither a beneficiary nor the executor in any of those wills. Ljubica’s three wills left her estate to her family in the Serb Republic of Bosnia and Herzegovina (the “Serb Republic”).

In April 2015 Ljubica made her third and final will (the “2015 Will”), appointing Irene Samaan and Mile Gorgioski, as executors. The beneficiaries are Ljubica’s nieces and nephew in the Serb Republic. Probate of the 2015 Will has been granted to Irene and Mile.

Ljubica’s only substantial asset was her home at Canley Heights (the “Property”). She had purchased it subject to a mortgage in 1985. Radan claimed that when he married Ljubica in 1989, she told him that she still owed $12,000 on the mortgage over the Property.

Radan claims he gave Ljubica a lump sum of $7,000 or $7,500 and other funds, and thereafter his entire wages, which enabled Ljubica to repay the mortgage early and then be applied by her to meet their expenses as a married couple.

Second, Radan claimed that at the time of their divorce Ljubica told him “When I die, Radan you will inherit the home” (the “Alleged Representation”). In reliance on the Alleged Representation, he did not apply for a property settlement.

Radan claims that he is entitled either to the Property or to such interest in the Property as represents his contribution to the repayment of the mortgage.

The Court was not satisfied the number of his contributions or the Alleged Representation was made and therefore was unable to be satisfied with the facts Radan relied upon to make the claim. The only person who could corroborate Radan’s evidence is Ljubica ; there are no contemporaneous financial or other records; the relevant events took place more than twenty-five years ago; there are demonstrable inconsistencies in other parts of Radan’s testimony; and, there is no evidence that Radan ever mentioned his alleged entitlement to anyone until after Ljubica’s death.

Radan sought leave to make a claim for a family provision order under the Succession Act 2006 (NSW) (the “Act”) 11 months out of time; seeking an order that the limitation period be extended.

The Court held that as an ex-spouse Radan was able to bring a claim under the Act, however, it believed he demonstrated a barely sufficient basis to extend the time for the filing of his claim; and was not satisfied that there are factors warranting his application under the Act.

Although Radan is not well off and has some serious health issues. However, even if there were factors warranting, the Court is satisfied that this would have been a case where Ljubica’s clearly expressed testamentary wishes should be respected and would not have made a family provision order.

Importantly the Court raised concerns that Radan’s supporting affidavits were prepared and witnessed by Radan’s solicitor who speaks Serbian and English. The Solicitor took instructions from Radan in Serbian. He then translated those instructions himself into English and prepared their affidavits in English. He then read the affidavit back to the relevant witness in English and translated it back to them in Serbian to obtain their assent to its contents concluding with this statement:

“This affidavit has been read out to the deponent in English and translated into Serbian by the witness who speaks both Serbian and English. The deponent appeared to understand the content of the affidavit and subscribed the affidavit by signature in the presence of the witness.”

The Court made no suggestion that Radan’s solicitor acted unethically. However, it noted that during the course of oral evidence, at various times both witnesses (giving their evidence through an accredited interpreter) at various times said words to the effect that they did not understand or recognise “their words” in their respective affidavits.

An affidavit in English giving an account of a conversation will at least implicitly represent that the conversation was in English. If in fact, the conversation was in another language, then the affidavit is misleading (even if unintentionally so)

Further, a bilingual solicitor should not interpret the deponent’s evidence to produce an affidavit in English. Being bilingual is not the same thing as being an interpreter (spoken words) or translator (documents).

Interpreting and translating are highly skilled occupations, conducted by professionals adhering to a code of ethics with an emphasis on professional competence, accuracy and independence and following specialist tertiary study.

In assuming the role of interpreter or translator in their own matters (even where the solicitor is a professional interpreter) the solicitor could be placed in an invidious professional position leading to allegations of bias (both conscious or unconscious) being raised.

Importantly the Court advised legal practitioners that when preparing the affidavit evidence of a culturally or linguistically diverse (CALD) witness, bilingual solicitors should not interpret their clients’ affidavits into English. A qualified interpreter should be retained to interpret the deponent’s instructions into English. When the deponent is asked to swear or affirm their affidavit, an interpreter should translate the English version back to the deponent and the procedure set out in the Standards, which are intended to provide courts with guidance on engaging and working with interpreters to ensure procedural fairness for people with limited or no English proficiency and have been approved by the Council of Chief Justices of Australia and New Zealand.

 

 

 

 

 

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