Jaksic-Repac v Dundjerski

BELL CJ: The late Mimi Milka Berger (née Jaksic) (the Deceased) died on 10 November 2022 in New South Wales at the age of 86. A successful artist and businesswoman, she left an estate worth in excess of $24 million (as of 28 February 2025), comprising predominantly real property but also cash and her art collection (the Estate). One of the properties forming part of the Estate was in Commonwealth Street, Surry Hills (the Surry Hills Property). The relevance of that will become clear later in these reasons.

The Deceased divorced her husband in 1995 and had no children. All of her siblings predeceased her. She had a number of nieces and nephews, children of her siblings. One of those was the Appellant in these proceedings, who was the fifth defendant/cross claimant in the proceedings at first instance, Branka Jaksic-Repac (Branka or the Appellant).

The Deceased executed a will on 22 May 2015 (the Will), having met with Mr Bradley Campbell, a solicitor at the offices of Leggat & Associates (Leggat & Associates) for the purposes of executing it. The Will fully complied with the formal requirements specified in s 6 of the Succession Act 2006 (NSW) (the Act). Under the Will, all of the Deceased’s artworks were left to Dusko Dundjerski (Dusko), the Deceased’s grandnephew, with the balance of the Estate divided equally between Dusko and his mother, Bozica Dundjerski (Bozica), one of the Deceased’s nieces. Dusko and Bozica were appointed joint executors under the Will. Both reside in Switzerland.

Various witnesses gave evidence at trial of having been informed by the Deceased of the existence of the Will and her plans to distribute the Estate between Dusko and/or Bozica. Such people included Bozica herself, Ms Maria Lazaros, a practice manager of an accounting firm professionally acquainted with the Deceased, and Mr Dragan Radovic, a close friend of the Deceased for 20 years before she died.

On 1 March 2017, in response to a request of the Deceased, Ms Leggat of Leggat & Associates provided her with a copy of the Will, Mr Campbell previously having left the firm. The Deceased mailed a copy of the Will to Bozica in Switzerland, who received it in March 2017, and made a copy of it which she gave to Dusko. Mr Radovic gave evidence that he was told by the Deceased that she had sent a copy of the Will to Bozica.

The Deceased was hospitalised in May 2022 after falling and breaking her arm. At that time, the Deceased shared with one of her neighbours, Srdja Jankovic (Srdja), her intention to leave him and his wife Gordana the Surry Hills Property on account of their spiritual connection and close friendship.

On 14 June 2022, while still in hospital, the Deceased signed a document headed “Codicil to my last will and testament of Mimi Jaksic Berger” (the Codicil), the operative parts of which provided:

The Codicil was not witnessed. The Deceased provided Srdja with the following explanation (which was accepted by the primary judge) as to why the Codicil could not be witnessed by hospital staff:

The Deceased, following her discharge, did go to a new solicitor, Mr Bryant, to amend the Will and gave instructions consistent with the proposed gift of the Surry Hills Property to Srdja and Gordana. She had not executed that amended will prior to her death, though Mr Bryant did send a draft to her which was in evidence.

On 22 May 2023, more than 6 months after the death of the Deceased, Branka and a number of her relations (her sibling and numerous cousins), lodged a caveat in the following terms:

Notwithstanding its terms, no claim of undue influence ever appears to have been pursued. Indeed, Senior Counsel for Branka expressly disavowed such a claim at first instance.

Central to the proceedings at first instance, however, was the fact that following the Deceased’s death, the original of the Will (the Original) could not be found. Thus it was that, when Dusko commenced proceedings in the Equity Division, apart from seeking the withdrawal of the caveat, he also sought orders in the following terms (with emphasis supplied and noting that prayer 4A was subsequently added by amendment):

Branka, by way of cross claim, maintained that the Deceased died intestate and sought an order that the administration of the intestate estate be granted to her. The essence of her contention was that, because the Original could not be located, it should be presumed that the Deceased had destroyed it with the intention of revoking it.

The primary judge held that no such presumption was engaged and that, even if it were, it was rebutted in all the circumstances of the case. Accordingly, his Honour set aside the caveat and granted probate of the copy of the Will on the application of Dusko as executor. He also gave effect to the Codicil even though it had not been properly executed on the basis, in accordance with s 8 of the Act, that the Deceased intended it to form an alteration to the Will: The Estate of Mimi Milka Jaksic (Berger) [2025] NSWSC 253 (PJ or primary judgment).

It is from that decision that the appeal is brought. Branka seeks to have both probate orders set aside, a declaration that the Deceased died intestate, an order that the administration of the Estate be granted to her, as well as costs in the Court below and of the appeal.

For the reasons given below, the appeal should be dismissed with costs.

The relevant principles were not in dispute either at first instance or on appeal.

Where a will (meaning the original and not secondary evidence of it such as a copy will) cannot be found upon a testator’s death despite a diligent search, and provided the will was last traced to the testator’s possession, a rebuttable presumption of fact arises that the will was destroyed with the intention of revoking it: Sugden v Lord St Leonards (1876) LR 1 PD 154 (Sugden); see also Bar-Mordecai v Rotman [2000] NSWCA 123 at [135] (Rotman); Whiteley v Clune (No 2); The Estate of Brett Whiteley (Supreme Court (NSW), 13 May 1993, unrep) (Whiteley). In this context, it should be noted that s 11(1)(e) of the Act provides that the whole or any part of a will may be revoked but only “by the testator, or by some person in his or her presence and by his or her direction, burning, tearing or otherwise destroying the will with the intention of revoking it" (emphasis added).

The strength of the presumption depends on the character of the testator’s custody of the will, including the physical arrangements the testator has in place for it, who knows or has access to it, and the degree of care taken in looking after it: Rotman at [136]; Cahill v Rhodes [2002] NSWSC 561 at [59] (Cahill); Sugden at 217-8; see also McCauley v McCauley (1910) 10 CLR 434 at 438; [1910] HCA 16; Demediuk v Demediuk [2019] VSCA 79 at [39].

The strength of the presumption also depends on the nature of the will itself: Rotman at [136]; Clines v Johnston and Anor [2008] NSWSC 524 at [9]; Taylor v Waters (Supreme Court (NSW), 19 June 1992, unrep). In Cahill at [58], Campbell J quoted Powell J’s enumeration of the following four principles in Whiteley:

As the primary judge held at PJ [43]:

The proviso to the engagement of the presumption is important. Thus, the original of the will in question must be “last traced” to the testator’s possession. The presumption would thus not be engaged if it were established, for example, that the testator never took possession of the original because it was retained at a solicitor’s office or was left with some other custodian. This is an anterior question of fact. It was answered against the Appellant in the present case.

The primary judge accepted the evidence of Mr Campbell that he did not recall handing over any original documents or retaining any original documents after the signing of the Will. Mr Campbell left Leggat & Associates on 31 March 2016 and did not have access to any files of the firm after that.

Leggat & Associates was wound up on 31 March 2016 following Mr Campbell’s departure. The primary judge noted at PJ [29] that Ms Leggat had “undertaken a thorough review of her electronic and hard copy files and [could not] locate the original Will” or, equally importantly, “any record of it being provided to the deceased.”

In about February 2017, the Deceased called Ms Leggat and requested a copy of the Will. It may be inferred that the Deceased would not have done so had the Original been (or remained) in her possession.

In 2018, after the Deceased instructed a new solicitor, Marc O’Brien, to request her lease files and testamentary documents from Ms Leggat and he received them, the following exchange occurred (which the primary judge accepted):

When the Deceased was hospitalised in 2018, she told Dusko “if something happens to me call Marc O’Brien, he is my lawyer…He has my last will”: PJ [28].

The primary judge also noted that on 18 July 2022, the Deceased told her new solicitor, Mr Bryant, that her will was held by Mr O’Brien (see [37] below), and, sometime in July 2022, she had also told Gordana the same thing.

This short recitation of the evidence sustains the primary judge’s stated lack of satisfaction that the presumption was engaged.

The primary line of attack on this conclusion in the appeal was by reference to evidence of office practice at Leggat & Associates but that evidence was, with no disrespect to Mr Campbell and Ms Leggat, who gave it, quite inconclusive. Thus, Mr Campbell was cross-examined as follows:

Ms Leggat, who had nothing to do with the creation of the Will, said she could only speak for herself when agreeing that if her firm had retained the Original, there would have been some sort of record of it either being deposited, maintained or then uplifted.

Implicit in the primary judge’s statement at PJ [54] that he was “not persuaded” that the presumption applies is the fact that the Appellant carried the burden in establishing that possession of the Original was last traced to the Deceased. The exiguous evidence referred to in the previous two paragraphs does not generate any reason in my mind to question his Honour’s lack of persuasion or to reverse his conclusion on appeal. On the contrary, for the reasons given by the primary judge and elaborated upon above, the Appellant did not demonstrate that the Original was last in the possession of the Deceased so as to engage the presumption. The Deceased’s conduct and her requests and interactions with her various solicitors were all quite inconsistent with her ever being in possession of the Original following its execution.

Even if the presumption had been engaged, the primary judge expressed the conclusion that “it has been well and truly rebutted”: PJ [55]. I agree.

The primary judge at PJ [59] identified the factors driving this conclusion as follows:

To these factors may be added a number of further factors which were inconsistent with any destruction of the Original with the intention of revoking it.

First, the Deceased’s mailing of a copy of the Will to Bozica in Switzerland in March 2017 is inconsistent with her either having destroyed the Original with a view to revocation or otherwise manifesting any intention of revoking the Will. The same may be said of Dusko’s having discussed the Will with the Deceased in 2018, and the Deceased having told him, as accepted by the primary judge, “please make more copies and keep them in a safe place”: PJ [27].

Counsel for the Appellant said that this still left open the possibility that the Deceased may have destroyed the Original at some time after these exchanges in 2017 and 2018. Apart from being pure speculation, this submission was flatly inconsistent with the exchange deposed to by Mr Bryant as having taken place between the Deceased and him on 18 July 2022, only months prior to the Deceased’s death. That exchange was to the following effect:

The Appellant’s reference in argument to the uncontroversial fact that, between May 2004 and May 2015, the Deceased had made and destroyed several testamentary instruments had no forensic significance in view of the Deceased’s positive statements to Mr Bryant in July 2022 as to the currency of her will. The will to which she referred in that exchange can only have been the copy of the Will the subject of the application for probate.

These considerations only reinforce the primary judge’s reasons for concluding that the presumption, if engaged, had been rebutted.

The primary judge added for completeness at PJ [61] that he was “satisfied that the deceased intended the Codicil to form her Will or an alteration to her Will within s 8(2). If the Will had been destroyed animo revocandi, the Codicil revived it. Either way, there is no room for the presumption to have operated.”

No effective attack was made on this reasoning. The primary judge accepted the evidence of Srdja noted at [8] above as to why the Codicil was not witnessed by the hospital staff. In any event, once it is accepted that the presumption did not apply or in any event was rebutted, the efficacy of the Codicil was of no relevance to the Appellant’s contention that the Deceased died intestate. It was relevant as between the beneficiaries of the gift of the Surry Hills Property and the beneficiaries under the Will. There was no contest between those parties.

The appeal should be dismissed with costs.

PAYNE JA: I agree with the Chief Justice.

KIRK JA: I agree with Bell CJ.