Branka JAKSIC-REPAC v Dusko Dundjerski

2025/00153997

SUCCESSION – Mimi Milka Berger (the Deceased) died on 10 November 2022, at 86 years of age – the Deceased had no children and left an estate valued in excess of $24 million as at 28 February 2025, comprising predominantly valuable real property, cash, and her art collection – on 22 May 2015, the Deceased signed a will (the Will) by which she appointed her niece, Bozica Dunderski, and her grandnephew, Dusko Dundjerski (the respondent), as her executors and trustees – under the Will, they were to receive all of her real property, household contents, bank accounts, and the residue of the estate – the original Will could not be found, but a copy shows that it complied with the formal requirements of s 6 of the Succession Act 2006 (NSW) – on 14 June 2022, the Deceased signed a codicil (the Codicil) confirming the Will and leaving her property in Surry Hills to Srdja Jankovic and Gordana Jankovic (together, the Jankovics) – the Jankovics were close friends of the Deceased – on 22 May 2023, the defendants filed a caveat against a grant of probate, asserting an interest in the Deceased’s estate on intestacy – they relied on the presumption that the Deceased had destroyed her original Will animo revocandi – Branka Jaksic-Repac (the appellant, referred to as Branka) was the sole active defendant at first instance – Branka was the Deceased’s nephew – the primary judge held that the evidence did not establish that the Will was destroyed (by being torn up or otherwise) so as to satisfy section 11(1)(e) of the Succession Act – the primary judge also found that the evidence did not establish that the Will was in the possession of the Deceased at the time of her death – the primary judge concluded that there were compelling circumstances rebutting any presumption of destruction or destruction animo revocandi – the Codicil, although not properly witnessed, referred to and reaffirmed the Will – the primary judge further held that even if the Will had been revoked, the Codicil had testamentary effect and revived the Will – the primary judge granted probate to the respondent – whether the primary judge erred in failing to find that the Deceased had revoked the will where; there was insufficient evidence to rebut the presumption of revocation, and, there was evidence in support of the presumption of revocation that was not taken into account – whether the primary judge erred in finding that even if the Will had been revoked, the Codicil revived the Will where; as a matter of law, if the Will had been revoked, the Codicil did not have the effect of reviving the Will, and, the Codicil did not reflect the testamentary intentions of the Deceased within the meaning of section 8 of the Succession Act where the Deceased's signature on the Codicil was not witnessed – whether the primary judge erred in finding that the Jankovics were credible witnesses, where their evidence was glaringly improbable and directly contradicted by evidence of other witnesses whom the Court accepted as credible.