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The Estate of Mimi Milka Jaksic (Berger) [2025] NSWSC 253 – Hammerschlag CJ
This case concerned an application for a Grant of Probate of a missing Will and Codicil. The Deceased was a Serbian immigrant and a well-known Artist, who left a sizeable estate in excess of $24 million comprising of real property, cash and her art collection.
Facts:
The Deceased signed a Will on 22 May 2015 (the Will) appointing her niece Bozica (Bozica) and Bozica’s son (Dusko) as joint Executors. Under the Will, Bozica and Dusko were left all the Deceased’s real property, bank accounts and residue of the estate. However, the original Will could not be found. A copy of the Will was located, which showed that it was validly executed under section 6 of the Succession Act 2006 (NSW).
On 14 June 2022, the Deceased prepared a document titled “Codicil to my last will and testament of Mimi Jaksic Berger” (Codicil). Under the Codicil, the Deceased left her property in Surry Hills to Mr Srdja Jankovic and Mrs Gordana Jankovic (the Jankovics), who were close friends of the Deceased. The Codicil stated that the Deceased’s original Will was held by a Solicitor in Kogarah. The Codicil was not witnessed.
On 22 May 2023, the niece of the deceased lodged a Probate Caveat to prevent Probate being granted to Dusko. On 27 July 2023, Bozica signed a renunciation of probate. Dusko brought these proceedings to remove the caveat and sought for Probate to be granted of the copy of the Will and Codicil.
Issue:
As the original Will could not be found, the issue was whether the presumption of animo revocandi (meaning ‘intending to revoke it’) applied, and if it did, had the presumption been rebutted. This presumption arises where someone dies leaving a Will that cannot be found, which was last known to be in his or her possession at the date of death.
Determination:
His Honour considered the facts and evidence and held that the presumption had not applied in this case, and if it did apply, it had been rebutted.
The Deceased had prepared a number of previous wills before the Will and Codicil were executed. Some of these older original wills were being held by solicitors and others had been removed by the Deceased. One of these Wills left a legacy for the Jankovics to benefit from the Deceased’s estate, which was submitted into evidence of the Deceased’s testamentary intentions.
The evidence established that the Deceased believed that the original Will was in the possession of her solicitor. In September 2018, the Deceased gave authority for her previous solicitors to release her file in relation to her Wills to the Kogarah solicitor. On 18 July 2022, the Deceased stated to another solicitor that the Will was held by the Kogarah solicitor. In July 2022, the Deceased made a similar comment to her friend, Gordana Jankovic. The Codicil also states that the original Will is held by the Kogarah solicitor.
His Honour ordered for the Probate Caveat lodged on 22 May 2023 to be withdrawn and for Probate in solemn form to be granted of the copy of the Will dated 22 May 2015 and Codicil dated 14 June 2022.
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