Dobryden v Wagner & the Assn of Ukrainians in SA Inc

Dobryden was the plaintiff in this case, which was heard in the Supreme Court of South Australia. The defendant, Wagner, was the executor of the estate of the deceased, Ivan Dobryden. The association of Ukrainians in South Australia Inc was also a party to the dispute. The central issue in this case was the interpretation of a handwritten will made by the deceased, which left the residue of his estate to his relatives. The primary question was whether the will contained a partial intestacy concerning the residue of the estate, and if so, whether extrinsic evidence could be used to determine the interest of the deceased in the estate. Another issue was whether there was a lapse in the gift of one-seventh share of the proceeds of the sale of the house property to a beneficiary who predeceased the testator.

The court considered the principles of construction of testamentary dispositions and the presumption against intestacy. The court held that the presumption against partial intestacy did not apply to the construction of homemade wills, and that extrinsic evidence could be used to determine the interest of the testator. The court also held that there was a lapse of the gift of one-seventh share of the proceeds of the sale of the house property to the beneficiary who predeceased the testator. This was because the beneficiary had predeceased the testator and had no legal representative to take the gift.

The court concluded that the will did not contain a partial intestacy concerning the residue of the estate, and that the extrinsic evidence could be used to determine the interest of the deceased in the estate. The court ordered that the estate be distributed according to the terms of the will, with the one-seventh share of the proceeds of the sale of the house property going to the estate, as there was a lapse of the gift to the beneficiary who predeceased the testator. The court also ordered that the costs of the proceeding be paid by the defendant.