Contested Probate and testamentary capacity

The Estate of Milan Zlatevski; Geroska v Zlatevski [2020] NSWSC 250

This contested probate involved a question of Testatmentary capacity.

In this case the NSW Supreme Court considered whether the deceased’s age and illness, and the exclusion of his son from his will, raised doubt as to his testamentary capacity.  They considered whether whether the deceased had the ability to understand the nature and value of his estate and whether the deceased was suffering from insane delusions that affected the provisions of the will.  The Court considered whether the deceased was able to comprehend and appreciate the claims to which deceased ought to have given effect  and whether alleged false misrepresentation vitiates will.

The Court made the following orders and decisions about costs;


  1. The general rule is that costs follow the event unless it appears to the Court that some other order should be made: Uniform Civil Procedural Rules 2005 (NSW), r 42.1.
  2. While exceptions to the usual rule have been recognised in probate litigation, no submissions were made to the Court that this was a case in which the exceptions apply.
  3. Nada’s statement of claim seeks an order for Tony to pay her costs of and incidental to the proceedings. In the absence of any submissions on the issue of costs, I propose to make an order consistent with the general rule that costs follow the event and order Tony to pay Nada’s costs of the proceedings.
  4. If either party considers that some other costs order should be made, they are to confer with the other party and, within 14 days, notify my Associate that a variation to the costs order is sought. They should also provide an agreed timetable for the exchange of short written submissions so that the issue of costs can be determined on the papers.


  1. For these reasons, I make the following orders:
  1. Probate of the will of Milan Zlatevski dated 15 October 2013 be granted to the plaintiff in solemn form.
  2. The proceedings be referred to the Registrar to complete the grant of probate.
  3. The cross claim filed by the defendant on 1 March 2017 be dismissed.
  4. The defendant/cross-claimant pay the plaintiff’s costs of the proceedings on an ordinary basis, in an amount to be agreed or accessed.