Stojic v Stojic

1. [1]

   MEAGHER JA: I agree with White JA.

2. [2]

   PAYNE JA: I agree with White JA.

3. [3]

   WHITE JA: This is an appeal from orders of a judge of the Equity Division (Lindsay J). His Honour granted probate in solemn form of a will of the late Ivan Stojic (“Ivan” or “the deceased”) dated 4 November 2013 (Re Estate Stojic (dec’d) [2017] NSWSC 168). The issues before the primary judge were whether the deceased (“Ivan”) made valid later wills on 23 May or 6 June 2014. The primary judge found that neither later will was valid.

4. [4]

   By his will of 4 November 2013 Ivan appointed his son, Simon Stojic, as his executor and left his estate to his executor to be held upon a trust as set out in clause 4 of the will for three sons, Anton, Simon, and Ivan Matthew (“Matthew”) and a daughter, Ivanna.

5. [5]

   Ivan died on 13 June 2014. He died in Zagreb in Croatia leaving property in New South Wales.

6. [6]

   Anton and Simon were the children of Ivan and his first wife. Anton was born in 1965 and Simon in 1971. After Ivan and his first wife were divorced Ivan married his second wife, Monica. Ivan’s third son, Matthew, was the child born of that marriage. The deceased had a subsequent relationship with Sanya Ferenc. Ivanna is the daughter of Sanya and Ivan.

7. [7]

   Ivan was born in Croatia in 1940 and moved to Australia by at least 30 June 1970. In about 2002 he started to reside for part of the year in Croatia during the Australian winter. He moved back to Croatia on a permanent basis in 2008. His youngest son, Marijan, was born to his third wife, Jagoda, who lived in Croatia, as did Marijan.

8. [8]

   The appellants, Ivanna and Matthew, were the plaintiffs in the proceedings below. In their amended statement of claim the first plaintiff was named as Sanya as guardian for Ivanna. Ivanna was 15 when Ivan died. She was born in December 1998. The second plaintiff was Matthew. Ivanna and Matthew sought declarations that the deceased left valid wills made on 23 May 2014 or on 6 June 2014. Both wills named Anton as executor and excluded Simon. Anton renounced probate. Ivanna and Matthew sought a grant of letters of administration with either the will of 23 May 2014 or the will of 6 June 2014 annexed. Both wills were in the same terms (save as to date). The will of 23 May 2014 was re-executed on 6 June 2014 because there were doubts as to the sufficiency of the execution of the 23 May 2014 will because it was not signed on each page. Those doubts were misplaced.

9. [9]

   By 6 June 2014, a mere week before his death, Ivan was unable to sign a will. An inkpad was obtained and Ivan pressed his finger on the inkpad to leave a mark of his finger print on the will. The primary judge found that at the time of execution of the 6 June 2014 will the deceased lacked testamentary capacity. There has been no appeal from that finding.

10. [10]

    Ivanna and Matthew appeal from the primary judge’s refusal to grant letters of administration with the will of 23 May 2014 annexed. The primary judge found that the deceased had testamentary capacity to make that will. That finding is not challenged. His Honour found that there were suspicious circumstances surrounding the execution of the will of 23 May 2014. That is not disputed. His Honour found that he was not satisfied that the deceased knew and approved of the contents of the will of 23 May 2014. That finding is the issue raised by the appeal.

11. [11]

    The will of 23 May 2014 appointed Anton, rather than Simon, as the executor of the will and trustee of the trust established by the will. It established a trust in similar terms to the trust established by the 4 November 2013 will (save as to a clause 4(e) concerning the trustee’s power of investment), but provided for there to be only three beneficiaries of the trust, namely, Anton, Matthew and Ivanna.

12. [12]

    Both the will of 4 November 2013 and the will of 23 May 2014 included a clause that stated that the deceased made no provision for his former wife, Jagoda, or his son Marijan because he had provided for them by the provision of assets owned by him in Croatia where they reside, including the provision of assets to his former wife as part of a property settlement of matrimonial assets. Neither Jagoda nor Marijan played any part in the proceedings in this Court.

13. [13]

    The will of 23 May 2014 included a clause 7 that stated:

14. [14]

    There is no dispute that if the 23 May 2014 will is not valid there should have been a grant of probate of the earlier will of 4 November 2013.

Reasons of the Primary Judge

1. [15]

   After noting that the plaintiffs had correctly conceded that there was a well-grounded suspicion or doubt as to whether the 2014 wills expressed the mind of the deceased sufficient to require the plaintiffs to prove affirmatively that the deceased knew and approved of the contents of the will (at [9]), the primary judge continued as follows:

2. [16]

   The primary judge did not address the evidence upon which these conclusions were based. The appellants dispute the findings that:

3. [17]

   In relation to the last finding, the appellants also submit that this finding was not open to the primary judge because it amounted to a finding of fraud, and the primary judge had refused Simon leave to amend his defence to plead that allegation.

4. [18]

   The primary judge observed (at [22]) that the validity of the 2014 wills occupied only one field of disputation between the parties. Other disputes related to the ownership and control of Ivan’s company, Statewide Office Furniture Pty Ltd (“Statewide”), and applications for family provision relief under Ch 3 of the Succession Act 2006 (NSW) brought by Ivanna, Matthew, Anton and Marijan (at [24]). His Honour also referred to other proceedings pending in the Family Court affecting Simon. His Honour put those proceedings aside as being substantially irrelevant to the determination of the dispute as to the validity of the 2014 wills (at [27]).

5. [19]

   The primary judge observed that:

6. [20]

   I infer that it was because of his Honour’s concern not to enter upon the merits of disputed question of facts that would arise in other proceedings that his Honour did not make findings of fact that were essential to the determination of this proceeding. In that his Honour erred.

Chronology of Events or Alleged Events

1. [21]

   The evidence did not establish exactly when Ivan emigrated to Australia. The company he formed, Statewide, was incorporated on 30 June 1970. Ivan’s nephew Marijan (not to be confused with his son Marijan) gave evidence that Ivan lived most of his life in Australia. Statewide had a business of manufacturing and supplying office furniture.

2. [22]

   The accountant for Statewide was a Mr Ian Bruce Robertson. He had acted for Ivan for approximately 40 years from 1974. Between 1980 and 20 March 2014 he was a director of Statewide.

3. [23]

   From 2002 Ivan started to reside in Croatia during the Australian winter. In early 2013 the then Manager for Statewide, Mr Tim Goodwin, left his employment. Mr Robertson deposed that in early 2013 Ivan’s health began to deteriorate. On 30 September 2013 he had a conversation with Ivan in which Ivan said that he wanted Simon to become managing director and to be given 80 per cent of the shares and that Josip Bezina (a long-time employee of Statewide) be given 20 per cent of the shares. Ivan instructed Mr Robertson that he wanted both Simon and Josip Bezina to become directors. He said that he wanted Simon to be his executor and he was going to give Simon his house at Bardwell Park and his Mercedes.

4. [24]

   Those instructions were implemented. Mr Robertson prepared share transfer forms and company minutes to document the change of ownership of the shares in Statewide and the appointment of directors. On 4 October 2013 he gave the documents to Simon to take to Croatia to be executed by Ivan.

5. [25]

   Simon deposed that he stayed with his father in Zagreb from about the beginning of November 2013 to December 2013. He returned to Sydney in mid-December 2013 and stayed in Sydney until February 2014 when he went back to Zagreb. He stayed with his father from February to April 2014.

6. [26]

   Simon deposed that in 2000 his father said to him that he wanted to give Simon his house in Bardwell Park. The property was transferred to him in 2013.

7. [27]

   Simon deposed that in 2013 he was working a minimum of 50 hours per week in Statewide’s business. He said there had been disputes between Ivan and Matthew in relation to Matthew’s involvement in the business. Ivan had arranged for cameras to be installed in Statewide’s premises so that he could watch what was happening from Zagreb. There were accusations and counter-accusations as to whether the cameras had been interfered with, whether Matthew had attempted to set up a business in competition with Statewide, whether violence had been used, and other matters to which it is unnecessary to refer in these reasons.

8. [28]

   On 4 November 2013 Ivan granted to Statewide a lease over land that Ivan owned in Kingsgrove for a term of five years with a five-year option for renewal. The initial annual rent was $346,000. The rent was to be increased in accordance with changes to the Consumer Price Index.

9. [29]

   On 7 November 2013 Simon received a transfer into his Australian Commonwealth Bank account from Ivan of a sum of $4 million. The Commonwealth Bank record includes a reference “Ivan Stojic/RFG/Gift”.

10. [30]

    On 3 December 2013 a sum of AUD$1.8 million was deposited into an account of Simon’s with Privredna Bank of Zagreb and transferred to a term deposit in Simon’s name. There was a dispute as to whether this was money paid by Ivan to Simon, as Matthew claimed or was Simon’s own money as he claimed.

11. [31]

    Mr Robertson deposed that in early December 2013 Ivan told him that he was giving Josip Bezina 20 per cent of the shares in Statewide, but if anything happened to Josip he wanted the shares to stay in the family. Mr Robertson said that he would organise a shareholders’ agreement for Ivan and give instructions to Kevin Emanuel. Mr Emanuel was Ivan’s solicitor.

12. [32]

    On 18 December 2013 Mr Robertson sent an email to Mr Emanuel stating that Simon had advised him that Ivan wanted a shareholders’ agreement to be signed by Josip as a condition of the transfer of a 20 per cent interest in the company. Mr Robertson advised Mr Emanuel that there had been further telephone conversations on the matter between Ivan and Simon, and that Simon had confirmed to him that the basis on which Ivan wanted the shareholders’ agreement prepared was that Josip could not transfer or pledge the shares to anyone other than Simon or Simon’s nominee, that on Josip’s retirement Simon should have the option to purchase Josip’s shares on a certain basis as set out in the email, and that any funds to the credit of any shareholder loan account of Josip in Statewide should be transferred to Simon or his nominee on completion of the transfer of the shares. Mr Robertson’s instructions, as conveyed to him by Simon, were that the consideration to be paid on a transfer of shares from Josip would be the lesser of $250,000 or 20 per cent of gross profit from trading as shown in the previous financial year’s profit and loss statement of Statewide.

13. [33]

    Mr Emanuel prepared a shareholders’ agreement accordingly. The shareholder’s agreement was signed by Simon and Josip Bezina on 20 March 2014.

14. [34]

    Mr Bezina deposed that in mid to late 2013 Ivan had told him that he planned to put Simon in charge of the Statewide business as he was not happy with Matthew’s work there. He deposed that Ivan had told him that Simon had told Ivan that Matthew had turned off the cameras. Mr Bezina expressed his doubt about that. Mr Bezina deposed that in September 2013 Ivan told him that he would be giving Simon 80 per cent of the shares and would give 20 per cent of the shares to Mr Bezina and appoint him as a director. He deposed that in October 2013, after Simon had left to travel to Croatia to see his father, Ivan called him and said words to the effect:

15. [35]

    Mr Bezina deposed that on Simon’s return from overseas, he asked Simon when he would be giving money to his brothers and sister and that Simon said:

16. [36]

    Mr Bezina deposed that he later informed Ivan what Simon had said and Ivan responded by saying:

17. [37]

    The primary judge did not refer to and made no finding about this evidence.

18. [38]

    Mr Bezina deposed that he signed the shareholders’ agreement without legal or other advice because he thought that that was what was required. He deposed that in about March 2014 Ivan again said that he was unhappy with Simon and could not trust him, and that Ivan complained that Simon had not given Mr Bezina his shares or made him a director. The primary judge made no finding about this evidence.

19. [39]

    Mr Bezina deposed that on 20 March 2014 Ivan appointed him as a director of Statewide and he was issued a 20 per cent shareholding only on signing the deed. He said that between January and March 2014 Simon rarely attended the factory for more than four hours at a time and that he reported that to Ivan. He said that by March 2014 Ivan told him that he was unhappy with Simon and could not trust him, that Simon had kept all the money that he had told Simon to share with his brothers and sister, that he had not given Josip his shares or made him a director and that he would have to do something to set matters right. He deposed that on 20 March 2014 Ivan appointed him as a director of Statewide.

20. [40]

    Again, the primary judge did not refer to and made no finding as to whether or not he accepted this evidence.

21. [41]

    Mr Bezina deposed that in April 2014 he had a further conversation with Ivan who was scheduled to go for medical treatment in Frankfurt, Germany and required money to pay for his treatment. He deposed that Ivan told him that he could not get access to his money in Croatia and that Simon had taken his name off his account. He deposed that Ivan said that there was €1.8 million in the account that was his money to live on and to pay for his medical bills, and that he had no money. He deposed that Ivan said that he wanted Simon out, that he was a “greedy bastard” and that Simon wanted to sell the business.

22. [42]

    Mr Bezina deposed to a further conversation with Ivan in April 2014 in which he repeated his complaint that €1.8 million that he had in a bank account in Zagreb had been taken by Simon, although the money had been put aside either to be given to charity, to a hospital for disabled children, or for use in payment of Ivan’s own medical expenses. He deposed that Ivan complained that he had no money for his medical bills.

23. [43]

    The primary judge made no finding about this evidence.

24. [44]

    The primary judge said that Mr Robertson, and Mr Emanuel, gave independent credible evidence consistent with their professional callings. Mr Robertson deposed that in April 2014 Ivan said to him “Simon and I had words while he was here and I’m not happy with what he’s doing. I think it was a mistake to give him the shares.” Mr Robertson told Ivan that he did not think there was anything he could do about that as he had already given Simon the shares.

25. [45]

    Anton gave evidence of hearing a conversation between his father and Simon in which his father said words to the effect that “I want you to put me back in charge of my own accounts in the bank at Zagreb”. He deposed to his father complaining that Simon would not give him his money and that there was €1.8 million that was “mine”. Anton deposed that in the same conversation Ivan accused Simon of being greedy and that he had given Simon $4 million to be shared with his brothers and sister.

26. [46]

    Marijan (Ivan’s nephew) also deposed that in March 2014 Ivan (speaking in Croatian) told him that he had given Simon $4 million to share between his brothers and sister in Australia and that Simon had not done as he had asked, but had kept the money for himself. Marijan also deposed that Ivan complained that Simon was not letting him have access to a bank account of his in which there was €1.8 million.

27. [47]

    The primary judge made no findings as to whether or not this evidence of Anton or Marijan should be accepted or rejected.

28. [48]

    On 1 May 2014 Sanya Ferenc, mother of Ivanna, wrote a letter addressed to Statewide which she said was written on behalf of Anton, Matthew and Ivanna. The letter records that it was only the previous night that Ivanna found out from her brothers Anton and Matthew that Ivan was gravely ill. She accused Simon of providing misleading information as to the state of their father’s health. She asked Statewide to pay for an airline ticket so that Ivanna could visit her father. She recorded that Ms Georgia Armstrong of Statewide had advised her that Simon had said that the company would not pay for Ivanna’s ticket. Sanya objected to this. She also said that the circumstances of Simon’s taking control of the company and spending enormous amounts of money immediately were highly suspicious and possibly fraudulent.

29. [49]

    Ms Armstrong referred the letter to Mr Emanuel who advised that it was not appropriate for Statewide to respond.

30. [50]

    Ivanna nonetheless did travel to Zagreb. She travelled with Matthew. Simon had travelled again to Croatia leaving on 27 April 2014.

31. [51]

    On 8 May 2014 in Zagreb there was a physical altercation between Simon and Matthew in Ivan’s presence. Simon and Matthew blamed the other for the fight. Matthew deposed that when Simon had left Croatia he spoke to Anton who told him “certain things about Simon and mismanagement of my father’s bank accounts by Simon and his consequent inability to pay for his treatment.” He said that the following day he had a conversation with Ivan who told him that he had had to get a cousin, Mija, to pay medical expenses and he could not access his accounts and get money out. According to Matthew, he was told to ring Mr Robertson and find out how to get Simon out of the company.

32. [52]

    Simon gave evidence to the effect that Ivan’s medical expenses were in fact being charged to Ivan’s Commonwealth Bank MasterCard and the card was being paid by Statewide. Simon said that Ivan’s medical bills were paid by the company until he died and they were paid on time. The primary judge neither accepted nor rejected this evidence.

33. [53]

    Mr Robertson deposed that on 9 May 2014 he had a conversation with Matthew about his father’s affairs and that he, Mr Robertson, told Matthew that he should speak to his father. Matthew’s version of this conversation was that he told Mr Robertson that his father wanted to remove Simon from the company and asked for a copy of the company’s memorandum and articles of association. He deposed that Mr Robertson said that he could not give him the documents as he was not an officer of the company. He said he reported the conversation to Ivan.

34. [54]

    Mr Robertson deposed that Ivan had the practice of leaving money payable by Statewide to him for rent, and leaving dividends payable to him in a loan account. He deposed that on 10 May 2014 Ivan asked him to take as much cash from the company as he could and transfer it to him and also to ask Simon to transfer 40 per cent of the shares back to him. Mr Robertson’s file note of that conversation also records his being asked to fax through details of the current position and transactions since 1 July 2013 and to have the rent etc. paid into a bank account (presumably Ivan’s bank account) each month.

35. [55]

    On 12 May 2014 Mr Emanuel spoke with Mr Robertson. Mr Robertson told Mr Emanuel that Ivan was owed $1.5 million by Statewide and wanted it to be paid directly to him. Mr Emanuel advised that that should be dealt with by a company resolution.

36. [56]

    On 13 May 2014 Ivan instructed Mr Robertson that Anton was to have a power of attorney and an existing power of attorney granted to Mr Robertson was to be revoked. Ivan told Mr Robertson that Anton could stop Simon from using money that Ivan had given him if he were to give Anton a power of attorney. He also instructed Mr Robertson that Anton had asked to be appointed as executor of Ivan’s will.

37. [57]

    Mr Robertson told Mr Emanuel that Ivan wanted a new power of attorney prepared. Mr Emanuel had concerns about difficulties of executing a power of attorney when Ivan was in Croatia. Mr Robertson suggested that Mr Emanuel ring Ivan directly. Mr Emanuel did so that day. Ivan instructed Mr Emanuel that he wanted to do a power of attorney. Mr Emanuel said that there were problems in having a power of attorney executed correctly because it had to be witnessed by particular people. Ivan said he would get the embassy officials to witness it. Ivan also instructed Mr Emanuel that he wanted to change his will, but he did not give him any details as to what the changes were to be. He told Mr Emanuel that Anton would ring him. Mr Emanuel said words to the effect “Ivan, I act for you and Statewide. I can’t act for your children.” Ivan said he understood and wanted Mr Emanuel to be his solicitor and Statewide’s lawyer. Mr Emanuel received a telephone call from Anton on about the same day. Anton was with Ivan. Ivan instructed Mr Emanuel to give Anton a copy of his will. He also said that he wanted a new power of attorney to be for Anton and Mr Robertson jointly. Mr Emanuel said that he had already told Ivan that there were problems about getting a power of attorney executed in Croatia, but said that he would prepare the document and send it to him with his advice. Mr Emanuel did so. He sent the power of attorney under cover of a letter of advice dated 16 May 2014. He sent a copy of Ivan’s will to Anton by email on 16 May 2014.

38. [58]

    Meanwhile, on or about 13 May 2014 Sanya telephoned a Mr Joseph Assi who had done legal work for Sanya in the past as a solicitor. Mr Assi had been subsequently struck off the roll. He described himself as a management consultant and legal broker. He deposed that at Sanya’s request he attended on her at her home where he met also with Anton. According to Mr Assi, Anton told him that Simon now controlled all of Ivan’s money and was denying him treatment and had taken control of Statewide. Anton said that his father had asked him if there was any way he could regain control of his own money and property. Anton said that Ivan was very upset with his lawyers and accountants for allowing Simon to take control of Statewide and freeze him out of his own money, and also wanted to change his will. Mr Assi deposed that Anton told him that Ivan wanted to kick Simon out of Statewide and take back control of a bank account in Croatia that had €1.8 million out of which Simon had somehow manage to freeze his father. According to Mr Assi he said it would be best if he spoke with Ivan personally and asked Anton to ask Ivan to call him at a convenient time.

39. [59]

    Mr Assi deposed that he received a telephone call from Ivan on 16 May 2014. He deposed to having had a conversation with Ivan to the following effect:

40. [60]

    Neither Mr Emanuel nor Mr Robertson was cross-examined on the truth of the accusations said to have been made by Ivan to Mr Assi that they told Ivan to transfer all his money into Simon’s name and to put him in charge of Statewide. Mr Robertson’s evidence was that Ivan instructed him to arrange for the transfer of assets to Simon.

41. [61]

    Mr Assi telephoned Mr Robertson on or about 16 May 2014. Mr Robertson (whose evidence was accepted by the primary judge) said that Mr Assi told him that he was a business consultant to Anton and wanted a copy of the memorandum and articles of association of Statewide and the annual statements. Mr Robertson declined to provide those documents to Mr Assi saying that he was not an officer of the company. Mr Robertson recorded that Mr Assi said to him “If you don’t provide the documents we’ll take action against you as a director as Simon has been acting fraudulently.” Mr Robertson’s contemporaneous file notes recorded that Mr Assi:

42. [62]

    Mr Robertson deposed that he spoke to Ivan on 17 May 2014 and said:

43. [63]

    Ivan responded “I apologise. No-one is accusing you of anything. Simon hasn’t been paying my bills.” Mr Robertson deposed that at Ivan’s request he agreed to give the memorandum and articles of Statewide and the annual statements to Mr Bezina. Mr Robertson did not say that Ivan denied knowledge of Joe Assi.

44. [64]

    On 16 May 2014 Mr Assi received an email from Anton attaching a copy of Ivan Stojic’s will dated 4 November 2013. He deposed that on 17 May 2014 he telephoned Ivan and had a conversation with him to the following effect:

45. [65]

    On 19 May Mr Assi drove with Anton to collect a copy of the constitution of Statewide from Mr Bezina.

46. [66]

    Mr Assi deposed that on 20 May 2014 he had a telephone conversation with Ivan to the following effect:

47. [67]

    On 21 May 2014 Mr Assi sent an email addressed to Ivanna to Sanya’s email address that attached a copy of a new will for Ivan. This was the will that Ivan signed on 23 May 2014.

48. [68]

    Mr Assi’s evidence was challenged in cross-examination. He was not only cross-examined on credit as a struck off solicitor who had served gaol time, but more specifically on the facts to which he deposed. The primary judge said (at judgment [53]) that he did not charge any witness with conscious dishonesty. In relation to Mr Assi the primary judge said (at [61]):

49. [69]

    The primary judge did not say whether he accepted or rejected Mr Assi’s evidence as to the instructions Mr Assi deposed he had received from Ivan. If instructions were given as Mr Assi deposed to, that might persuasively demonstrate that Ivan knew and approved of the contents of the will. On the other hand, if Mr Assi’s evidence that Ivan told him that Mr Robertson had told Ivan to transfer his assets to Simon were accepted, but that was not true, that might affect an assessment of Ivan’s rationality.

50. [70]

    On 20 May 2014 an email was sent under the name of Ivan to Georgia Armstrong, an employee of Statewide, giving notice of a directors’ meeting to be held at 4.00pm on 23 May and by telephone and Skype. The email was sent from an email address used by Anton.

51. [71]

    Mr Bezina gave evidence that on or about 20 May 2014 he had a conversation with Ivan in which Ivan told him he was calling a directors’ meeting for the coming Friday, that Georgia was preparing the notice, and he wanted to put Anton in charge and to replace Simon as the majority shareholder. According to Mr Bezina, Ivan said that Simon was not following any of his instructions and he planned to destroy the business and he could not let that happen. Mr Bezina concurred.

52. [72]

    Ivanna gave evidence that she received the draft new will (that had a typed date of 23 May 2013) by email on 21 May 2014. Ivanna was in Zagreb. She said that Sanya told her to sign into her (Sanya’s) email account and print out the will and give it to her father. She said that using the deceased’s computer she logged into her mother’s email account and saw the attachment to the email. She asked Ivan whether he had a printer. Ivan said no. Matthew and she went to an office in the city and printed out the will and made several copies and she said that she gave the deceased the will and the copies of it. According to Ivanna’s affidavit, the deceased asked her to read the will to him. She said that she read every paragraph in English and from time to time while she was reading the will, Ivan said words to the effect “Yes, that’s right”. She said that after she had finished reading the will, the deceased took the documents, thanked her and said “I will take care of the will now”.

53. [73]

    However, in her oral evidence under cross-examination, Ivanna retracted her evidence of having read the will to Ivan when she and Matthew returned home after having printed the will out in an office in the city. In her oral evidence Ivanna said that she did not read the will to him. She gave the following evidence:

54. [74]

    In re-examination Ivanna was asked whether she wanted to clarify her answer that she did not read the will to the deceased, and said “I really don’t remember now”.

55. [75]

    The primary judge said that particular caution was required in assessing Ivanna’s evidence, partly because of her youth and partly because of the inconsistency between her affidavit evidence and the evidence she gave orally. The primary judge found that Ivanna’s memory of events associated with the 2014 wills was poor, if not non-existent. He also found that she was close to Matthew and that particular caution was required in dealing with Matthew’s evidence because of his intense partisanship as well as for other reasons referred to further below.

56. [76]

    Simon received a copy of the notice convening the directors’ meeting on 21 May. In an affidavit sworn in separate proceedings in the Corporations List, Simon deposed that he telephoned Mr Robertson who told him that he had no knowledge of the meeting, nor of the email address used. Simon deposed that Mr Robertson said that he had spoken to Ivan the previous week and he made no mention of a meeting. Simon deposed:

57. [77]

    Simon deposed that he telephoned his father that night who asked him about the email and Ivan said “What email?” Simon deposed that he said “The one that calls a directors’ meeting for Friday” and that Ivan responded “Yeah.”

58. [78]

    Simon did not participate in the directors’ meeting called for 4.00pm Australian time on 23 May (8.00am in Croatia). He closed the office early in the afternoon and told Georgia Armstrong and Mr Bezina that the directors’ meeting was adjourned to a date to be arranged. Although Simon said that he closed the factory, the meeting nonetheless went ahead at the factory. Anton and Mr Bezina were in attendance with Mr Assi and Georgia Armstrong. Ivan attended by telephone. The directors who attended (Ivan and Mr Bezina) resolved to appoint Anton as an additional director and as secretary of Statewide. They also resolved that Anton be appointed as managing director for a term of two years on the terms of an agreement, the draft of which was said to have been tabled at the meeting. They resolved that Simon be removed as secretary and that 9,000 “A” class shares, 9000 “B” class ordinary shares, 900 “K” class preference shares and 1,800 Management Shares be issued to Anton.

59. [79]

    Ivan signed the minutes. The signed minutes were faxed back to Statewide.

60. [80]

    The agreement appointing Anton as CEO was signed by Anton and by Ivan.

61. [81]

    Later that day Ivan, Ivanna and Marijan (the deceased’s nephew) travelled to the Australian Embassy in Zagreb where the will was signed.

62. [82]

    The primary judge noted that Marijan was not challenged in his evidence that the deceased went to the embassy with a copy of the will in his personal possession. Ivanna stayed outside the embassy when Marijan and her father attended an embassy official to execute the will. The embassy official had no recollection of the events. The primary judge noted that Marijan gave no evidence of the will having been read by or to the deceased before its execution.

63. [83]

    Mr Assi deposed that on 24 May 2014 he was telephoned by Ivan who told him that he had received the new will, that he had read it and had signed it at the Australian Embassy the previous day. Mr Assi deposed that he asked Ivan whether he also sent a copy of the will to Boyd House (Mr Emanuel’s firm) and that Ivan said that there was no time to do so, but that he had read the will and was happy with the changes. He said that Ivan told him that Ivanna would send him the will. The primary judge rejected Mr Assi’s evidence that Ivan told him twice that he had read the will. The primary judge said that the evidence was too convenient and that Mr Assi’s evidence was coloured by his partisanship.

64. [84]

    When Simon attended the Statewide premises on 26 May 2014 he was refused entry by Anton. Security guards were present to enforce Anton’s refusal. Simon told Mr Emanuel what had occurred. Mr Emanuel told Simon that he could not act for him in his capacity as a director and he would need to instruct other lawyers. On the same day Mr Emanuel sent a letter to Ivan stating that his firm had acted for Statewide over many years and that he assumed that he continued to be instructed by Ivan personally and by Statewide. In relation to instructions from Statewide, the instructions were to be received from the directors. Mr Emanuel wrote that if there were issues between the directors of Statewide he could not act for individual directors in any dispute with other directors. He awaited Ivan’s instructions in relation to the draft power of attorney which had been sent to Ivan on 16 May 2014.

65. [85]

    Ivan was admitted to hospital in Germany on 27 May 2014.

66. [86]

    Mr Assi deposed that on about 29 May 2014 he received a package from DHL in which was included the original executed will of Ivan dated 23 May 2014. He deposed that he was surprised to see that the will had been executed only on its last page. He said that he had a conversation with Ivan in which he told Ivan that the will should have been executed on each page and that he would need to speak to a solicitor about whether that might cause any potential problems. He said that Ivan told him that Mr Bezina was due to fly to Croatia on 4 June and that Ivan said to give him a fresh copy so that he could sign it again. Ivan said that he sought the advice of a solicitor, Mr Bruce Dennis. On 2 June 2014 he received a telephone call from Anton who said to him that Ivan wanted him to fly to Germany that day as there was no time and that Ivan was dying and he wanted to make sure that the will was signed properly. On 4 June 2014 Mr Assi and Ivanna flew to Frankfurt to see Ivan. As noted above at [9], a will identical to the will dated 23 May 2014 was signed by Ivan’s making a fingerprint on the will on 6 June 2014. The primary judge said that at that time Ivan lacked testamentary capacity. There has been no appeal from that finding. Ivan died on 13 June 2014.

67. [87]

    Simon commenced proceedings in the Corporations List of this Court challenging the validity of the resolutions of 23 May 2014. On 18 November 2014 orders were made by consent declaring that the issues of shares purportedly made on 23 May 2014 were void.

Simon’s Application to Amend Defence to Plead Fraud

1. [88]

   Simon pleaded that Ivan lacked testamentary capacity on both 23 May 2014 and 6 June 2014. No issue of testamentary capacity was raised on appeal. Simon also pleaded that suspicious circumstances attended the preparation and execution of both documents to such a degree that the plaintiffs should not be granted the relief sought in respect of either will. Detailed particulars were given of those suspicious circumstances.

2. [89]

   At the commencement of the hearing before the primary judge Simon sought leave to amend his defence to include the following allegation:

3. [90]

   Leave to amend was refused. In refusing the application for amendment the primary judge said that he could not exclude the possibility that the solicitor for the plaintiffs was justified in saying that amendment of the defence would require consequential fresh inquiries to be made (judgment 13 February 2017 at [5]). There was no appeal from the refusal of leave to amend.

4. [91]

   Simon did not allege as a particular of suspicious circumstances attending execution of the 23 May 2014 will that the plaintiffs encouraged Ivan to hold a false impression that Simon intended to sell Statewide, or that he did not have money to live on or pay medical expenses, or that Simon had taken his money, or that Simon was denying him treatment. Nonetheless, on appeal Simon contended that these were suspicious circumstances on the basis of which the case had been fought at trial.

Primary Judge’s Reasons

1. [92]

   Very few of the relevant facts are referred to in the judgment of the primary judge. The reasoning is comprised in paras [10] and [11] of the primary judge’s judgment quoted at [15] above and in paras [92]-[101] quoted at [103] below.

2. [93]

   No findings of primary fact were made to support the findings of ultimate fact in paragraphs [10] and [11] of the primary judge’s judgment.

3. [94]

   The primary judge referred to Ivan’s early preferment of Simon and that this was a cause of disputation. His Honour noted the arrangements made in late 2013 for Simon to be given 80 per cent of the share capital of Statewide and noted the will of 4 November 2013 appointing Simon as executor. His Honour noted the transfer of $4 million into Simon’s bank account and that this had been recorded in the bank documents as a gift. His Honour noted the transfer of the Bardwell Park property to Simon (at [38]). His Honour said (at [39) that it was not necessary to engage in a controversy about the proper characterisation of other transactions, including the deposit of $1.8 million into Simon’s account in December 2013, notwithstanding that his Honour said that such transactions lay at the heart of the family’s disputation and were said to colour an assessment of Ivan’s conduct in May and June 2014. This was an error. A decision as to whether or not Ivan did know and approve of the contents of his will of 23 May 2014 could not be made without a decision as to whether Ivan believed that there were good reasons for him to change his previous will.

4. [95]

   The primary judge found (at judgment [41]) that Simon’s evidence that Ivan told Simon that the gift of $4 million would assist Simon to buy the Kingsgrove land from the deceased’s estate in a few years’ time so as to facilitate the ongoing profitability of Statewide was plausible. His Honour did not say whether he accepted that evidence. He made no finding as to whether or not Ivan had told Simon that the gift of $4 million was to be shared with his siblings. If that had been Ivan’s stated intention, there was good reason for Ivan to have changed his will, once Simon disputed that that was a term of the gift.

5. [96]

   The primary judge made findings as to the credit and reliability of the principal witnesses. His Honour said that he did not charge any witness with conscious dishonesty, but also said (at [53]) that:

6. [97]

   His Honour went on to say that particular caution was required upon an assessment of Ivanna’s evidence, of Matthew’s evidence, of Anton’s evidence, and of Simon’s evidence (at [56]-[59]). Ivanna was young and impressionable and her memory of events was poor or non-existent (at [56]). Matthew was intensely partisan and had a tendency to give evidence in an adversarial manner that was transparently looking to advance his case (at [57]). Anton, although conscientious, lacked judgment, perhaps associated with his health problems. (It was common ground that Anton had mental health issues.) He had a financial motivation no less strong than the other members of the family (at [58]). Simon was blinded by the wealth that came his way in 2013 and lacked insight into the expectations, including the reasonable expectations of others. He fuelled their suspicions when he was made the central object of Ivan’s bounty. He was prone to be baited by Matthew and to overreact (at [59]).

7. [98]

   The primary judge found that, leaving aside his chequered history as a struck-off solicitor who had served a gaol term, Mr Assi was a committed player in wresting control of Statewide from Simon and taking control of Ivan’s testamentary dispositions. He was paid a retainer by Anton and stood to gain financially from success on the part of Simon’s opponents (at [61]).

8. [99]

   Marijan (Ivan’s nephew) was an active player in that process working with Mr Assi and Simon’s siblings and was committed to their cause (at [62]).

9. [100]

   Mr Bezina was reluctantly drawn into the family feud. His evidence as to details was open to doubt and his sympathies were plainly with the plaintiffs who were in litigation with Simon concerning Statewide (at [63]).

10. [101]

    Ms Armstrong’s evidence was accepted that she ensured that Ivan’s credit card was routinely topped up to allow his medical expenses to be paid without delay or impediment (at [68]). Mr Emanuel and Mr Robertson were accepted as credible witnesses (at [69]).

11. [102]

    The primary judge noted that Marijan was not challenged in his evidence that the deceased went to the Embassy with a copy of the will in his personal possession (at 76]).

12. [103]

    The primary judge’s reasoning on whether or not Ivan knew and approved of the 23 May 2014 will was as follows (at [92]-[101]):

13. [104]

    Although the primary judge said that he was not satisfied that the will of 23 May 2014 was the last will of a “free and capable testator” it was common ground that the primary judge had found that Ivan had testamentary capacity to execute the will of 23 May 2014. Simon had sought to amend his defence to plead that the will was executed under undue influence, but that amendment had also been refused. On appeal, there was no issue that the will of 23 May 2014 was the last will of Ivan who executed it as a free and capable testator in the sense that he was not acting under undue influence (in the probate context, that essentially means under duress) and had testamentary capacity. Rather, the finding was that Ivan did not know and approve of the contents of the will.

14. [105]

    The primary judge did not refer to the evidence that might support or contradict the finding (at [10]) that the 23 May 2014 will was prepared and executed at the instigation of the plaintiffs and Anton Stojic or that the process of preparation and execution of the will was choreographed by them using the services of Mr Assi and Mr Dennis. It was the plaintiffs’ case that the will was prepared and executed at Ivan’s instigation and it was Mr Assi’s evidence that it was prepared on Ivan’s instruction. There was evidence from Mr Robertson, whose evidence was accepted, that Ivan told him that Anton had asked to be appointed as executor of Ivan’s will. The primary judge did not address Mr Emanuel’s evidence that Ivan told Mr Emanuel on 13 May 2014 that he wanted to change his will and that Anton would ring Mr Emanuel (at [15]), nor the later conversation with Anton and Ivan on Skype in which Ivan told Mr Emanuel that he wanted Mr Emanuel to give Anton a copy of his will and he wanted a new power of attorney to be prepared for Anton and Mr Robertson jointly. The primary judge did not address the evidence summarised above, which if accepted, would indicate that Ivan decided to change his will because he was annoyed with Simon over any or all of:

15. [106]

    It was not open to the primary judge properly to conclude that the will was prepared and executed at the instigation of family members, rather than Ivan himself, without addressing the primary matters of disputed fact relevant to that issue.

16. [107]

    Nor could the primary judge properly have concluded that the will was prepared and executed at the instigation of Ivan’s family members and that the deceased did not know and approve of its contents without addressing Mr Assi’s evidence of the instructions he was given.

17. [108]

    The primary judge’s finding that the process was “choreographed” by family members suffers the same defects.

18. [109]

    The primary judge did not identify evidence to support his finding that Ivan was prone to excitement in his desperation to create harmony within a fractured family as his death approached. If the evidence of Ivanna, Matthew, Anton, Marijan or Mr Bezina were accepted, it would not be correct to say that Ivan was desperate to create harmony in the family once he was satisfied that Simon was determined not to honour the alleged condition of the $4 million gift that it be shared with his siblings. Rather, the likely finding would be that Ivan considered that Simon had taken $1.8 million, had repudiated the alleged condition of the gift, and had shown his determination not to run the affairs of Statewide in the way that Ivan wanted.

19. [110]

    The primary judge’s credit findings did not go so far as to say whether or not his Honour accepted or rejected the witnesses’ evidence on particular issues.

Finding of Fraud

1. [111]

   In their submissions the appellants challenged the primary judge’s finding (at judgment [11]) that Simon’s rivals encouraged Ivan to believe, contrary to the fact that Simon had caused funds for the payment of his medical expenses to be withheld.

2. [112]

   As noted above, Simon had attempted to raise this allegation by way of an amendment to his defence to plead fraud. It was not a specific ground of appeal that the finding was not open because it amounted to a finding of fraud and the allegation of fraud had not been allowed. Mr Wilson SC, who appeared with Mr Birtles for Simon, did not contend that the submission could not be entertained because it was not the subject of a specific ground of appeal. Counsel did not suggest any prejudice if the court were to entertain the submission. In my view the submission should be entertained, notwithstanding that it was not a specific ground of appeal.

3. [113]

   In my view, this challenge is well-founded. Mr Wilson submitted that although Simon had not been permitted to run a case that Ivan had been induced to make a new will because other family members had misrepresented to Ivan that Simon had caused funds for the payment of Ivan’s medical expenses to be withheld, nonetheless, it was open to the primary judge to find that the will did not represent Ivan’s true intentions because it was executed on a false premise and this meant that it was open to the primary judge to find that the deceased did not know and approve of the contents of the will because he laboured under a false belief that caused him not to give a proper appreciation of Simon’s claim on his testamentary bounty. Mr Wilson submitted that there was evidence that Ivan had a failing mind, even though he had testamentary capacity, and that meant that it was necessary for the appellants to show that the will represented his true intentions. Mr Wilson submitted that if the deceased made the will on a false premise or under false belief, then the will did not represent his true intentions. He submitted that although the allegation of fraud was rejected in a proposed amended defence, the allegation was nonetheless treated by the parties as an additional particular of suspicious circumstances.

4. [114]

   Leave was not given to Simon to amend his defence to add as an additional particular of suspicious circumstances that Ivan was acting under a false belief that Simon had caused funds for the payment of Ivan’s medical expenses to be withheld. Nonetheless, the trial proceeded on the basis that one of the motivations that the appellants advanced for Ivan’s making a new will was his belief that Simon had stopped funds for the payment of his medical expenses. One of the issues fought at trial was that Simon had not done so, but that the deceased’s medical expenses were paid through credit cards that were duly paid by Statewide.

5. [115]

   The inquiry whether the deceased knew and approved of the contents of his will was different from an inquiry as to whether he was misled by those propounding the will. Mr Wilson relied on Tobin v Ezekiel (2012) 83 NSWLR 757; [2012] NSWCA 285 where Meagher JA said (at [51]) that:

6. [116]

   It does not follow that without a plea of fraud a party opposing a grant of probate can do so on the ground that although the testator knew the contents of the will and approved of them, he did so as a result of having been misled by the proponent of the will. In Tobin v Ezekiel at [53] Meagher JA said:

7. [117]

   In Nock v Austin (1918) 25 CLR 519 Barton and Gavan Duffy JJ said (at 523) that the defendant, by withdrawing an allegation of fraud:

8. [118]

   In Trustee for the Salvation Army (NSW) Property Trust & Anor v Becker [2007] NSWCA 136 Ipp JA (with whom Mason P and McColl JA agreed) said (at [69]) that although there were suggestions in some probate cases that it may not be necessary to make positive allegations of fraud in probate cases, such an approach is contrary to the modern notion of justice and “consistent with the modern approach to allegations of fraud, generally, in probate actions fraud must be explicitly pleaded.”

9. [119]

   In my view, on the state of the pleadings, the finding in the last sentence of [11] of the primary judgment (quoted at [15] above) cannot be supported.

10. [120]

    In any event, the bare conclusion is unsupported by reference to the evidence. Did the primary judge accept Simon’s evidence to the effect that all of the deceased’s medical expenses could be and were paid from his credit card that was in turn paid by Statewide? Did his Honour accept or reject Mr Bezina’s evidence that Ivan said to him that Simon had taken Ivan’s name off an account in Croatia in which there was €1.8 million and that Ivan needed to use some of that money for medical bills but could not access the account? There are no findings about these matters. If Ivan’s asserted belief that he did not have money for his medical expenses was but an aspect of his concern that Simon had prevented his having access to an account with €1.8 million, then a finding would need to have been made as to whether or not Simon had indeed denied Ivan access to such funds. There have been no findings on these important matters of primary fact.

Ivan’s Reading of the Will

1. [121]

   Mr Smallbone who appeared with Mr Rayment for the appellants, submitted that the primary judge ought to have found that Ivan could read English sufficiently well to have been able to read the will. He submitted that it should be inferred that because Ivan had possession of the will and the opportunity, motive and ability to read it before its execution, the primary judge should have found that he did so, and from that it should be inferred that Ivan knew and approved of the contents of the will that he signed at the Embassy.

2. [122]

   The primary judge made no clear finding as to Ivan’s ability to read English. He said (at [96]) that the evidence was obscure as to Ivan’s English literacy. He referred to the affidavit of Simon in which Simon told Mr Emanuel that Ivan could not write or read English well. His Honour referred to a transcript of recordings between the deceased, Matthew and Ivanna to the effect that the deceased could read English, but not write it. The primary judge made no finding as to whether Ivan could or could not read English well or otherwise. His conclusion was that:

3. [123]

   Mr Smallbone invited this Court to find that Ivan could read English, that he read the will after it was brought to him, he then gave instructions and made arrangements to have it executed at the Embassy in Zagreb, and told his nephew Marijan what it said. From this, he submitted, it should be concluded that the deceased did know and approve of the will. Mr Smallbone submitted that this finding could be made even in the absence of any findings of primary fact in relation to the grievances that the appellants contend Ivan had against Simon. Mr Smallbone submitted that it had not been an issue at trial that Ivan could not read English sufficiently well to read and understand the will. It was not a particular of the defence of suspicious circumstances that Ivan could not read the will. Ivan had run the business of Statewide in Australia for more than 30 years as its managing director. It could be assumed that he had sufficient English literacy to run a substantial business for decades. Mr Emanuel had deposed that he had made wills for Ivan on at least six occasions, namely on 30 April 1996, 1 April 1999, March 2003, 17 June 2008, 22 June 2011 and 4 November 2013. The 1999, 2003, 2011 and 2013 wills were in evidence. They were all in English and none recorded that the will had been translated to Ivan.

4. [124]

   Both Mr Robertson and Mr Emanuel corresponded with Ivan in English on matters of considerable complexity.

5. [125]

   The affidavit of Simon in which he deposed that he told Mr Emanuel that his father could not write or read English well and that this statement was true was an affidavit sworn by Simon in proceedings in the Corporations List in support of his application to set aside the resolutions of 23 May 2014. That affidavit was admitted as part of an exhibit referred to in Simon’s affidavit as follows:

6. [126]

   In neither of his affidavits sworn in opposition to the appellants’ application for a grant of letters of administration with either of the wills of 23 May 2014 or 6 June 2014 annexed, did Simon depose that his father could not read English well.

7. [127]

   Nonetheless, that statement was in evidence.

8. [128]

   On the last day of the hearing the appellants sought to recall Ivanna to examine her on inconsistent statements she had made. That application was ultimately disallowed. In the course of submissions reference was made to Marijan’s evidence in his affidavit of 16 July 2015 as to Ivan and he attending the Embassy and being introduced to Mr Hawson to have Ivan’s will witnessed. In the course of submissions the primary judge said, in arguendo, “There is no suggestion that the deceased could not read English is there? He ran a business did he not?” In response, Mr Wilson said “Yes, your Honour. I at this point in time don’t put forward that case. They will find something, I know, but there is nothing I can put to your Honour in relation to that.”

9. [129]

   This exchange took place before Simon’s cross-examination. There was no occasion for counsel then appearing for the appellants to cross-examine Simon on his statement in his Corporations List affidavit that Ivan could not read English well.

10. [130]

    The primary judge did not make a finding that Ivan could not read English sufficiently well to have understood the will. But his Honour does appear to have found (at [94]) that Ivan attended the Australian Embassy with a copy of the will in his personal possession knowing that it was an occasion upon which he was expected to execute it. This implicitly involves an acceptance of the evidence of Ivanna or Marijan, or both, that Ivan had the will or a copy of it in his possession. If he could read English sufficiently well, it is a likely inference that he read the will before he signed it. Indeed, even if he did not read all of the document, the last clause of the will, only four lines above his signature, stated “I have specifically excluded my son SIMON STOJIC from this my Will as he has taken from me over $4 million since October 2013.” If it is accepted that Ivan could read English, as it should be on the evidence before the primary judge, it is hard to see how Ivan could not have known that the will he was signing made no provision for Simon.

11. [131]

    The appeal to this Court is by way of rehearing on questions of both fact and law. I would conclude having regard to the primary judge’s findings surrounding the execution of the will of 23 May 2014, that Ivan had a copy of the will in his possession prior to his signing the will, that he had the opportunity to read it and it is probable that he did read it, and that he had sufficient command of English to understand that the will excluded Simon.

12. [132]

    It does not follow that it must be found that Ivan knew and approved of the contents of the will. In Fulton v Andrew (1875) LR 7 HL 448 the House of Lords held that the jury was entitled to be satisfied that although the will was read over to the testator, a discrepancy between what might have been the deceased’s instructions and the terms of the will was not brought to the testator’s attention. Hence the jury’s finding that the testator did not know and approve of the terms of a residuary clause of the will was unexceptionable.

13. [133]

    Where suspicious circumstances exist, for a court to be satisfied that the willmaker knew and approved of the contents of the will it must be satisfied that the will reflects his or her “real” intention or his or her “true” will (Baker v Batt (1838) 2 Moore 317; 12 ER 1026 at 321, 1027; Barry v Butlin (1838) 2 Moore 480 at 482-483; 12 ER 1089 at 1090; Fulton v Andrew at 461; In the Estate of Osment [1914] P 129 at 132; Nock v Austin at 524, 528; Public Trustee v McKeon (1917) 17 SR (NSW) 157 at 164; Fuller v Strum [2002] 2 All ER 87 at [59]; Gill v Woodall [2011] Ch 380; [2010] EWCA Civ 1430 at [14]).

14. [134]

    That issue is raised by Simon’s notice of contention. The issue is not necessarily resolved by a finding that the deceased read the will himself before its execution. In Atter v Atkinson (1865-69) LR 1 P & D 665 Sir JP Wilde’s directions to the jury included a direction that if the jury were satisfied that the testatrix read the contents of the will, then she must be taken to have known and approved of its contents. He said (at 670) that:

15. [135]

    Although the House of Lords rejected the width of that proposition in Fulton v Andrew, there is nonetheless a “grave and strong presumption” of knowledge and approval where the will has been read over to a competent testator before the will is signed (Fulton v Andrew at 469; Gill v Woodall at [15]). But at [22] in Gill v Woodall Lord Neuberger MR approved of a statement by Latey J in In Re Morris, Decd [1971] P 62 at 78 that:

16. [136]

    The strength of the inference of knowledge and approval that arises from the reading over of the will to the testator or by the testator can depend on the complexity of the will. Where there are suspicious circumstances, a finding that a willmaker did or did not know and approve of its contents will require an assessment of the degree of suspicion, the capacity of the willmaker to understand its contents, and whether the willmaker both knew and approved of its contents such that it represented his or her “real” testamentary intention.

Notice of Contention

1. [137]

   Simon filed a notice of contention that the decision below should be upheld on the following grounds in addition to those relied on by the primary judge, namely:

2. [138]

   Notwithstanding that the contention was framed in terms of the appellants’ not having proved that Ivan was a free and capable testator, Simon did not challenge the primary judge’s conclusion that Ivan had testamentary capacity as at 23 May 2014. Nor did he challenge Ivan’s “freedom” to make his will. Instead, he contended that even if the deceased were found to have been able to read sufficiently to understand the 23 May 2014 will and did so, he should not be found to have understood what he was doing and its effect because, having regard to his failing mind and the conduct of Simon’s adversaries, Ivan failed to appreciate and give effect to the claim of Simon on his bounty. Simon relied upon the judgment of Chadwick LJ in Hoff v Atherton [2004] EWCA Civ 1554 at [64] that:

3. [139]

   This statement has been considered in a number of cases (e.g. Estate of George Aeneas McDonald; Howard v The Sydney Children’s Hospital Network (Randwick & Westmead) [2015] NSWSC 1610 at [51]-[68]; Hobhouse v Macarthur-Onslow [2016] NSWSC 1831 at [459]-[471]; Church v Mason [2013] NSWCA 481; (2013) 12 ASTLR 190 at [18]-[22], [27]-[44]). Mr Wilson submitted that in Veall v Veall (2015) 46 VR 123; [2015] VSCA 60 the Victorian Court of Appeal advanced an “holistic approach” to knowledge and approval that is consistent with what he submitted is the current approach in England (Burns v Burns [2016] EWCA Civ 37 at [52]).

4. [140]

   The present appeal is not the occasion for considering any differences of approach to these matters. Simon submitted that Ivan was suffering from a failing mind on 23 May 2014 and this meant that proof of knowledge and approval of the will made by him on that day required an assessment of whether he had weighed all the claims on his testamentary bounty. Simon submitted that because of Ivan’s failing mind and the conduct of his adversaries, Ivan did not properly weigh up the claim of Simon to his bounty. Instead, Ivan proceeded upon the false premise that Simon could not be trusted and had, contrary to the fact, caused funds for his medical expenses to be withheld.

5. [141]

   The findings of fact are insufficient to determine this submission. The whole of the primary judge’s findings as to Ivan’s mental capacity as at 23 May 2014 are as follows:

6. [142]

   There were no findings on the particular issues which the appellants contended motivated the deceased to change his will. Whether it was a false premise that Simon could not be trusted, or whether Ivan had good grounds for considering that Simon could not be trusted, was an issue that was left unresolved.

7. [143]

   In the present case there has been no finding as to what instructions, if any, Ivan gave to Mr Assi for the preparation of the will. If he did not give instructions for the will, the case would bear a very different character than it would if he did give those instructions. Suspicions concerning Ivan’s knowledge and approval would be greatly increased. Those suspicions would be increased if Ivan had no basis for thinking that he had transferred assets to Simon on the basis that they would be shared with Simon’s siblings, or had no basis for thinking that Simon wanted to destroy Statewide’s business, or if he told Mr Assi that his lawyer and accountant had advised him to transfer his assets to Simon, but that was not true.

8. [144]

   Although there is a finding that the deceased had testamentary capacity as at 23 May 2014, there is no other finding as to the strength of his mental capacity. There is no finding as to whether or not there were grounds for Ivan to have been upset, disillusioned or angry with Simon for not, it is said, complying with Ivan’s wishes as to how he should deal with moneys transferred to Simon, or with the business of Statewide. There is no finding as to whether there were good grounds for Ivan to be upset, disillusioned or angry with Simon in relation to a transfer of $1.8 million from the account in Zagreb to Simon. Findings that would be necessary to resolve Simon’s notice of contention have not been made.

9. [145]

   This Court is not in a position to deal with these disputed questions of fact.

10. [146]

    Uniform Civil Procedure Rules 2005 (NSW) r 51.53 provides that the Court must not order a new trial unless it appears to the Court that some substantial wrong or miscarriage has been occasioned.

11. [147]

    In my view there is no option except to order a new trial. There would be a substantial wrong or miscarriage of justice if a new trial were not ordered. The appellants’ claim for a grant of letters of administration with the will of 23 May 2014 annexed would not have been determined in accordance with law because critical questions of fact would not have been decided. By the same token, the appeal could not be allowed and a grant of letters of administration with the will of 23 May 2014 annexed be granted, without critical questions of fact upon which the respondent relies having been determined. This Court is not in a position to make those determinations.

12. [148]

    Because there should be a new trial, no view I have expressed as to the facts on the evidence before the primary judge, should affect the judge hearing the new trial.

13. [149]

    There having been no issue that Ivan lacked testamentary capacity to make the will of 6 June 2014, and there having been no issue that he had testamentary capacity to make the will of 23 May 2014, a new trial should be limited so as to exclude those questions.

14. [150]

    Any issues concerning the amendment of pleadings, including the amendment rejected by the primary judge on application on the first day of hearing, should be a matter for the trial judge.

15. [151]

    The primary judge ordered that the costs of the appellants be paid out of the estate of Ivan on the ordinary basis and that Simon’s costs be paid out of the estate on the indemnity basis.

16. [152]

    Simon should pay the appellants’ costs of the appeal, but be granted a certificate under the Suitors’ Fund Act 1951 (NSW) in respect of the costs of the appeal. The costs of the trial should await the outcome of the new trial and be within the discretion of the judge hearing the new trial.

17. [153]

    For these reasons I propose the following orders:

    1. (1)

       Appeal allowed.

    2. (2)

       Order that orders 1-6 made on 3 March 2017 be set aside.

    3. (3)

       Order that the proceedings be remitted to the Equity Division for a new trial in relation to the validity of the alleged will of the deceased of 23 May 2014, but not including the issue whether the deceased had testamentary capacity to make the alleged will of 23 May 2014.

    4. (4)

       Order that the respondent pay the appellants’ costs of the appeal.

    5. (5)

       Grant to the respondent a certificate under the Suitors’ Fund Act 1951 (NSW).

    6. (6)

       Order that the costs of the proceedings before Lindsay J await the outcome of the new trial and be within the discretion of the judge conducting that trial.