PLAINTIFF ASSERTS THAT THE DOCUMENT FOUND IN THE DECEASED’S SAFE CUSTODY PACKET IS A CODICIL
Re Josipovic [2021] VSC 43 (11 February 2021)
This case involves the court’s determination whether the document found by the plaintiff is considered as a codicil which is included in the will
Facts:
Marija Josipovic (‘the deceased’) died on 3 October 2015, leaving a handwritten will dated 11 September 2002 (‘the will’).
The will appoints Maria Roscic and Mate Roscic as executors of the estate, gifts $20,000 to Ilija Josipovic and gives the residuary estate in equal shares to the children of Tereaz Ruzic, the children of Andela Markac, the children of Valentin Androcec and the children of Pavo Androcec.
Mate Roscic predeceased the deceased and Maria Roscic has renounced probate. The plaintiff has been authorised to apply for letters of administration with the will annexed.
After the plaintiff was authorised to act, it discovered a document dated 12 September 2002 (‘the informal document’). The informal document was stored in the deceased’s safe custody packet with the Australia and New Zealand Bank (‘ANZ Bank’), together with the certificate of title to the deceased’s house.
The plaintiff submits the informal document clearly records the deceased’s testamentary intentions. It contains a signed, handwritten document with directions for location and distribution of cash buried in back garden and directs the named executors to recover hidden cash and give $45,000 to Ilija Josipovic and keep $5,000 for their assistance. It also contains a burial direction, and a wish for Ilija Jospovic to use the money to build a monument.
Issue: Is the informal document considered as a codicil to the will?
Law:
Analysis:
The informal document is clearly a document and it clearly records the testamentary intentions of the deceased. It makes reference to one of the deceased’s assets, and expressly makes directions as to how she wishes it to be dealt with (by the named executors of her will) in the event of her death. The direction that some of the funds be appropriated for her burial adds further weight to the conclusion that the deceased intended the document to take effect on her death. Thus, the intentions expressed in the informal document are both dispositive and testamentary.
The circumstances around the creation and treatment of the document support this conclusion. As noted by the plaintiff, the informal document was stored with her financial institution with other important items and was executed only a day after her will, thereby forming part of a broader course of action settling her testamentary affairs. The deceased clearly treated the document as one of practical significance, intending that it take effect, in conjunction with her will, upon her death. The Court is satisfied that the deceased intended the informal document to take effect as a codicil to her will.
Conclusion: The informal document is a codicil to the will.
