Estate of Jakov Pavic [2024] ACTSC 414

In 1985, Mark Pavic was sentenced to eight years imprisonment for the manslaughter of his mother.  Almost forty years later, solicitors at Lexmerca Lawyers attempted to distribute the Estate of his father, Jakov Pavic but two issues arose: Mark could not be located and there was a question of whether he would be able to inherit the benefit of his father’s Estate as a result of the forfeiture rule, as at the time it applied only to cases of murder in the ACT.  Forty years later, the court ruling extended the rule to manslaughter making the matter the first of its kind in the Australian Capital Territory.

To distribute the Estate, ACT Courts required Lexmerca Lawyers, who were acting for the administrator of the Estate, to exhaust every avenue to determine whether Mark Pavic was still alive.  Lexmerca undertook extensive actions including searching through electoral roles, placing ads in newspapers in every state across the East Coast, finding and sending an extensive number of letters to Mark’s previous residences, as well as hiring a private investigator in Serbia where his family resided.

After facilitating these searches, if the Court advised that no further searches were required, Lexmerca Lawyers intended to seek an order established in Re Benjamin; Neville v Benjamin [1902].  A ‘Benjamin order’ can be sought when the beneficiaries to an Estate cannot be located and in the case of Mark Pavic, would have allowed for the distribution of the Estate to the sole remaining beneficiary, his sister Miriam Pavic.

In late 2022, however, after almost six years of failing to locate Mark Pavic, contact was made with a lawyer who knew Mark Pavic through political interests and confirmed that he was still alive.  The solicitor provided no assistance in locating Mark Pavic and ultimately a subpoena was issued requiring the solicitor to find and produce Mark’s phone number.  Correspondence between Mark and Lexmerca revealed Mark’s unwillingness to verify his identity which precluded the Estate from being distributed to him.  As a consequence, the next step for Lexmerca was to make an application to the Court to confirm that the forfeiture rule applied in the circumstances.  The forfeiture rule, stated simply by Justice David Mossop in his judgment, is the “general principle recognised by the law that no person can obtain, or enforce, any rights resulting to them by their own crime.”  In the ACT, this rule applied conclusively only to murder, retaining the right to modify the rule for cases of manslaughter.  Cases in NSW and Victoria allowed for the application of the forfeiture rule to cases of manslaughter, however, in the ACT, this had yet to be decided.

Justice Mossop’s ruling agreed with the position of Lexmerca Lawyers, confirming that Mark was not entitled to the benefit of his father’s Estate due to the forfeiture rule, extending it to apply to manslaughter in the ACT.  Additionally, he agreed that Miriam Pavic, the Estate administrator, was able to pay out the balance of Jakov Pavic’s Trust Fund to her as the sole beneficiary of his Estate.  The Court commended Lexmerca’s dealings throughout the entire process stating, “Your firm is conducting itself in an exemplary fashion, and you are a model of what other practitioners should be doing.”

The conclusion of this case was highly awaited as over forty years had passed since Mark Pavic was found guilty of the manslaughter of his mother.  By extending the forfeiture rule to apply to manslaughter, the outcome of this case will remain a landmark decision in the ACT.