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Growing Stronger Podcast Ep #18: That’s Not My Will

Posted on 1st October 2021
Catherine Henry Lawyers
Catherine Henry Lawyers

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Growing Stronger Podcast Ep 18 - That's Not My Will

In episode 18 of our podcast, Growing Stronger, Tanya Chapman discusses a form of elder abuse that is pressuring, harassing or manipulating an older person to change their will. The abuser may be trying to get the older person to leave them all or part of their estate, or they could be otherwise trying to dictate who the older person leaves their estate to.

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Case: Petrovski v Nasev; The estate of Janakievska [2011] NSWSC 1275

Note

  1. This is a brief summary of the topic and the case law covered in the episode and is not a full transcript of the recording
  2. The case discussed in the episode is a NSW case, so what we’re discussing will be based on the law in NSW and is not intended to be taken to be applied Australia-wide.
  3. While this podcast is aimed to be informative, it is not intended to be a substitute for legal advice. For any matter we discuss, we summarise, skip over parts that may be too technical and only generalise. You should still see a solicitor for complete advice that relates directly to your particular situation.

SUMMARY

What happens if a will has been made under pressure, harassment or manipulation? What can you do?

Well, there are a couple of arguments you could make.

  1. You might argue that the testator did not have the mental capacity at the time they made the will. This can particularly be the case where a medical condition makes the older person more susceptible to persuasion or control.
  2. You might argue that the testator did not have appropriate knowledge of the terms of the will and did not consent to the terms. This can be the case where the will has not been adequately explained to the older person.
  3. You might argue that the will was executed under undue influence from the abuser, in such a way that the true will of the testator was overpowered.

All three arguments were made in the case we’re looking at in this episode. This case also demonstrates how long family histories and complex family relationships can lead to inheritance expectations, as well as a misconception that a person is entitled to know what their relative has done in their will and has any say in how the will is drafted.

Vasilka Janakievska, also known as Vasa Janakievska, died on 29 May 2009 at the age of 87 years.

During her life, she made two wills – one in April 1999 and another in December 2004.

This case was in relation to the 2004 will and questioned:

  1. Whether Vasilka validly executed the 2004 will;
  2. Whether she had testamentary capacity at the time;
  3. Whether someone was exerting undue influence over her at the time she made the will; and
  4. Whether she had knowledge of the will and approved it.

Vasilka’s estate included a house in Rockdale and another in Erskineville. All up, at the time of the hearing in 2011, the estate was worth about $1.5m.

On the one side, we have Pavle Petrovski, Elli Stojanoska and Gordana Becvarov who I’ll refer to as the Plaintiffs.

And they’re facing off against Alek Nasev.

The plaintiffs were arguing that the 2004 will was invalid, that Alek has pressured Vasilka to change her will when she didn’t have capacity. They said the estate should be divided according to the 1999 will.

Alek was arguing that there was nothing wrong with the 2004 will.

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