Testamentary Capacity & Freedom

Milan Zlatevski died in May 2015 aged 85 leaving a will made on 15 October 2013 (“the 2013 Will”) appointed his daughter Nada Geroksa executor and sole beneficiary of his estate.

Milan’s estate consisted of a home in Rockdale (“the Rockdale property”) worth approximately $1.2 million, and cash in a Commonwealth Bank account in the amount of $23,146.55; no liabilities we’re disclosed in Nada’s executor affidavit, therefore the total gross value of the estate was $1,223,146.55.

Nada sought probate of the 2013 Will. Milan’s son, Tony (Tode) Zlatevski, challenged the Will claiming that Milan lacked testamentary capacity at the time the 2013 will was made.

Tony also claimed that the 2013 will was vitiated by a false representation made by Nada that Milan had bought a house for Tony.

The Court had to determine whether Milan had testamentary capacity at the time he made the 2013 will; and whether the 2013 will was vitiated by a false representation made by Nada and relied on by Milan.

As Milan had not made another will if the 2013 document is found not to be valid, he will have died intestate. In that event, Tony sought an order that he be granted letters of administration.

The Court was satisfied that Milan had testamentary capacity at the time he made the 2013 Will; he had knowledge of the nature and extent of the estate (its only substantial asset was the Rockdale property); and was able to comprehend, appreciate and weigh up the competing claims bearing in mind the importance of a testator’s power to freely dispose of their assets and of respecting their choices.

“a testator (who) has disinherited a child for reasons that may be unfair or shock ordinary members of the community, does not make a will invalid.”

Tony submitted that the 2013 will was vitiated by a misrepresentation made by Nada that Milan had provided Tony with a house; this representation was false and was relied on by Milan when executing the 2013 will.

The making of a false representation to a testator which has a direct effect on the making of a will, such as by inducing a testator to make their will in a particular way, maybe equivalent to positive fraud and may render the 2013 will invalid.

The Court was satisfied that Nada’s representation

”he bought the Kogarah house for Tony”

was based on Milan’s own longstanding and repeated belief, and there was no basis for the Court to infer that it was made by Nada with a design to raise a prejudice in Milan’s mind against Tony for her benefit.

The Court ordered that Tony pay Nada’s costs of the proceedings – although exceptions to the general rule that costs follow the event have been recognised in probate litigation, no submissions were made to the Court that this was a case in which the exceptions apply.

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