Drivas v Jakopovic [2018] NSWSC 1803

Supreme Court New South Wales

Medium Neutral Citation: Drivas v Jakopovic [2018] NSWSC 1803 Hearing dates: 19, 20, 21, 22 March 2018; further written submissions ending 13 April 2018 Date of orders: 23 November 2018 Decision date: 23 November 2018 Jurisdiction: Equity Before: Parker J Decision: (1) The plaintiff's Amended Statement of Claim dated 27 July 2016 is dismissed. (2) The defendant's Statement of Cross-Claim dated 6 April 2016 is dismissed. Catchwords: SUCCESSION – testamentary capacity – where the deceased excluded her granddaughter from the will – where the deceased suffered from a progressive neurological condition at the time of the will's execution – exclusion based on possible mistaken assumption or false belief – Carr v Homersham [2018] NSWCA 65 considered

SUCCESSION – testamentary capacity – assessment of evidence – expert evidence – weight of expert reports giving evidence on the legal issue of whether the deceased had testamentary capacity

PRACTICE AND PROCEDURE – pleadings and particulars – application to amend statement of claim – proposed claim contingent on the success of the main claim in the proceeding – where proposed claim potentially affects parties not joined in the proceedings – where the relief sought for the proposed claim is narrow – application refused

EVIDENCE – affidavit evidence – Uniform Civil Procedure Rules 2005 (NSW), r 35.2 – leave to rely on affidavit where deponent could not attend for examination – where deponent hospitalised – opposing party not informed of deponent's unavailability until the commencement of the hearing

EVIDENCE – opinion evidence – expert opinion evidence – doctor's opinion expressed in a medical certificate – basis of the opinion – resort to surrounding evidence to show basis – admissibility Legislation Cited: Evidence Act 1995 (NSW), ss 64, 79, 80 Guardianship Act 1987 (NSW), Part 5 Succession Act 2006 (NSW), s 41, Chapter 3 Uniform Civil Procedure Act 2005 (NSW), r 35.2 Cases Cited: Banks v Goodfellow (1870) LR 5 QB 549 Carr v Homersham [2018] NSWCA 65 Dasreef Pty Ltd v Hawchar (2011) 243 CLR 588; [2011] HCA 21 Dovuro Pty Ltd v Wilkins (2003) 215 CLR 317; [2003] HCA 51 Grey v Australian Motorists & General Insurance Co Pty Ltd [1976] 1 NSWLR 669 Hamilton v Nelson [2012] SASC 219 Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 Makita (Aust) Pty Ltd v Sprowles (2001) 52 NSWLR 705; [2001] NSWCA 305 Ministry of Health v Simpson [1951] AC 251 Pachkovski v Australian Executor Trustees Ltd [2011] NSWCA 94 Parslow v NSW Land & Housing Corporation; NSW Land & Housing Corporation v Parslow [2018] NSWSC 843 Re Crooks Estate (Unreported, Supreme Court of New South Wales, Young J, 14 December 1994) Re Griffith (decd); Easter v Griffith (1995) 217 ALR 284 Worth v Clasohm (1952) 86 CLR 439; [1952] HCA 67 Category: Principal judgment Parties: Anita Drivas (Plaintiff) Boris Jakopovic (Defendant) Representation: Counsel: J Brown (Plaintiff) R Tregenza (Defendant)