The case of the missing will and unwitnessed codicil

The Estate of Mimi Milka Jaksic (Berger) [2025] NSWSC 253

Court decisions serve as timely and practical reminders — both for legal practitioners and for clients — of the real-world consequences when estate planning documents are not clearly prepared, stored or communicated. As lawyers, we benefit from staying abreast of these judgments to better guide our clients through the complexities of succession law. For clients, these decisions reinforce the importance of having valid and up-to-date wills and codicils, and most crucially, ensuring that your appointed executor knows where the original documents are kept. Without this, even a well-considered estate plan can be thrown into dispute, creating uncertainty, delay and potential litigation.

Background: A Substantial Estate and Disputed Testamentary Intentions

Mimi Milka Jaksic (also known as Mimi Berger) passed away in Sydney on 10 November 2022, aged 86. A professional artist with no surviving spouse or children, she left behind an estate valued in excess of $24 million, largely comprising real property, cash, and her art collection.

In 2015, Mimi signed a will (the “2015 Will”) appointing her niece Bozica Dunderski and grandnephew Dusko Dundjerski as executors. Under that will, Bozica and Dusko were to receive her real property and the remainder of the estate. However, the original will could not be located after her death.

In June 2022, while hospitalised, Mimi signed a document titled “Codicil to my last will and testament”, leaving a specific property in Surry Hills to close friends Srdja and Gordana Jankovic. The codicil also stated: “I hereby confirm and republish my Last Will kept by Marc O’Brien, of Redmond Hale Simpson solicitors, in all respects other than those mentioned here.” Notably, the codicil was not witnessed.

The dispute arose after Branka Jaksic-Repac, one of Mimi’s nieces, challenged the application for probate, arguing that Mimi had died intestate, relying on the presumption that she had destroyed her 2015 Will with the intention of revoking it.

Key Issues Considered by the Court

The Court, presided over by Hammerschlag CJ in Eq, addressed several important legal questions:

• Whether the presumption of revocation applied to the missing original of the 2015 Will.

• If the presumption applied, whether it had been rebutted.

• Whether the 2022 Codicil could take effect under section 8 of the Succession Act as an informal testamentary document, despite not meeting formal execution requirements.

• Whether the Codicil could revive the 2015 Will even if it had been revoked.

Presumption of Revocation: Was the Will Destroyed?

Under established legal principles, where a will last known to be in the possession of a testator cannot be located after their death, a presumption arises that the will was destroyed with the intention to revoke it (animo revocandi).

However, the Court found that the presumption did not apply. Mimi did not believe she held the original will — she consistently told her solicitors and close confidants that her will was held by Marc O’Brien of Redmond Hale Simpson. As Hammerschlag CJ in Eq noted:

“Plainly she did not think it was [in her possession]. In September 2018, she told O’Brien she believed the original was with Leggat. On 18 July 2022, she told Bryant that her Will was held by O’Brien...”

Even if the presumption did apply, it was found to be “well and truly rebutted” based on consistent evidence of Mimi’s intentions, including statements to multiple parties that she was leaving her estate to Bozica and Dusko, with the Surry Hills property going to the Jankovics. The Court emphasised:

“All of the evidence points in the opposite direction [to revocation].”

Validity of the Codicil Under Section 8

Although the codicil was unwitnessed and therefore not formally valid under section 6 of the Act, section 8 allows the Court to dispense with formal requirements if satisfied the deceased intended the document to form part of their testamentary dispositions.

The Court held that the Codicil was indeed a valid alteration to the 2015 Will, citing Mimi’s clear statements of intent, both written and verbal. Her reasons for not having it witnessed were also found to be reasonable in the context of her hospitalisation and privacy concerns:

“The only reason she did not comply with the formalities... was a concern that the hospital staff would come to know of her properties and that she would be charged for staying in the hospital and might lose her properties.”

The Decision: Probate Granted

Ultimately, the Court made the following orders:

• The caveat preventing probate was withdrawn.

• The Codicil of 14 June 2022 was held to be a valid alteration of the 2015 Will pursuant to section 8 of the Succession Act.

• Probate was granted to Dusko Dundjerski in solemn form of the 2015 Will and Codicil.

Key Takeaways for Estate Planning

This decision highlights several practical points for testators and their advisors:

• The physical loss of a will does not automatically render it invalid. If there is clear and compelling evidence of the testator’s intention, the Court may uphold a copy.

• An unwitnessed document can still be given effect as a testamentary document under section 8 if the testator's intention is sufficiently clear.

• Consistent statements over time — especially to solicitors and close confidants — carry significant weight in establishing testamentary intent.

As Hammerschlag CJ in Eq observed:

“The Codicil, read together with the Will, reflect the deceased’s intentions stated on a number of occasions...”

Final Note

This case is a reminder of the importance of formalising testamentary documents through proper legal advice and ensuring their safekeeping. While the Court ultimately gave effect to Mimi’s intentions, the dispute involved complex litigation that could have been avoided with more comprehensive planning.