The Estate of Milan Zlatevski; Geroska v Zlatevski [2020] NSWSC 250

The Estate of Milan Zlatevski; Geroska v Zlatevski [2020] NSWSC 250

The Court held that the deceased, despite his age and illness, had testamentary capacity when making the 2013 will. There was no persuasive evidence of mental incapacity or delusion, nor was there a false representation by Nada causally relevant to the exclusion of Tony. The deceased knew and understood the nature and extent of his estate, reflected on the competing claims, and acted rationally in his dispositions. Thus, the 2013 will is valid and probate is granted in solemn form.

Jurisdiction
Australia
Judgment Date
19 March 2020
Procedural Posture
Contested Probate / Civil Proceedings / Principal Judgment (final Orders Made After Hearing)
Outcome
Probate of the will granted in solemn form; cross-claim dismissed; costs awarded against defendant.
Legal Topics
['contested Probate' 'testamentary Capacity' 'solemn Form Probate' 'validity of Will' 'testamentary Delusions' 'false Representation and Vitiation of Will' 'costs in Probate Litigation']
['succession Law' 'equity'] ['contested Probate' 'testamentary Capacity' 'solemn Form Probate' 'validity of Will' 'testamentary Delusions' 'false Representation and Vitiation of Will' 'costs in Probate Litigation']

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Procedural Posture

Contested Probate / Civil Proceedings / Principal Judgment (final Orders Made After Hearing)

Legal Issues

  1. 1 ['Whether the deceased had testamentary capacity at the time of making the 2013 will' 'Whether the 2013 will was vitiated by a false representation made by Nada Geroska and relied on by the deceased']

Ratio Decidendi

The Court held that the deceased, despite his age and illness, had testamentary capacity when making the 2013 will. There was no persuasive evidence of mental incapacity or delusion, nor was there a false representation by Nada causally relevant to the exclusion of Tony. The deceased knew and understood the nature and extent of his estate, reflected on the competing claims, and acted rationally in his dispositions. Thus, the 2013 will is valid and probate is granted in solemn form.

Court Disposition

Probate of the will granted in solemn form; cross-claim dismissed; costs awarded against defendant.

Orders

  • ['Probate of the will of Milan Zlatevski dated 15 October 2013 be granted to the plaintiff in solemn form.' 'The proceedings be referred to the Registrar to complete the grant of probate.' 'The cross claim filed by the defendant on 1 March 2017 be dismissed.' "The defendant/cross-claimant pay the plaintiff's costs...