Fairclough v Cvitan - [2019] WASC 370

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   FAIRCLOUGH -v- CVITAN [2019] WASC 370
CORAM:   KENNETH MARTIN J
HEARD:   10 OCTOBER 2019
DELIVERED          :   15 OCTOBER 2019
FILE NO/S:   CIV 1214 of 2014
MATTER:   IN THE MATTER OF THE WILL OF ANKA CVITAN, LATE OF 28 SUSAN ROAD, MADELEY, IN THE STATE OF WESTERN AUSTRALIA
BETWEEN:   KRYSTYNA DIANA FAIRCLOUGH
Plaintiff
AND
SRECKO FRANK CVITAN
First Defendant
TONCHI JOHN CVITAN
Second Defendant
VESNA ANE VLAHOV
Third Defendant
MILENA JANICE ZUVELA
Fourth Defendant

Catchwords:

Wills - Probate - Proof in solemn form - Whether court should pronounce will in solemn form - O 73 r 19 Rules of the Supreme Court 1971 (WA)

Legislation:

Rules of the Supreme Court 1971 (WA)
Wills Act 1970 (WA)

Result:

Pronouncement of the validity and force and effect of the will dated 13 June 2008 in solemn form

Category: B

Representation:

Counsel:

Plaintiff	:	Mr R Nash
First Defendant	:	In person
Second Defendant	:	In person
Third Defendant	:	In person
Fourth Defendant	:	In person

Solicitors:

Plaintiff	:	De Roberto Legal
First Defendant	:	In person
Second Defendant	:	In person
Third Defendant	:	In person
Fourth Defendant	:	In person

Case(s) referred to in decision(s):

Estate of Kouvakas; Lucas v Konakas [2014] NSWSC 786
Public Trustee v Gerritsen [2012] WASC 201
Tolson v Hender [2009] WASC 319
Wheatley v Edgar [2003] WASC 118

KENNETH MARTIN J:

In the present probate action the last will and testament of the late Anka Cvitan (the deceased), who died on 1 September 2013 aged 86 years, is sought to be proved in solemn form. The will in question was executed on 13 June 2008 (the 2008 will).
The action has been set down for a trial on an unopposed basis pursuant to O 73 r 19 of the Rules of the Supreme Court 1971 (WA) (RSC).
Following the unopposed trial, I made orders in the terms of [28]. I also informed the parties I would provide short reasons for making those orders. These are those reasons.

Background

The deceased and her late husband had four children, who are now all adults. They are all parties to the present action. I refer to them respectively with no disrespect intended as Krystyna (the plaintiff), her two brothers, Srecko and Tonchi (the first and second defendant) and the plaintiff's sister, Milena (the fourth defendant). At the hearing of the trial of the action seeking to prove the June 2008 will all parties, save for the plaintiff, were self-represented. The third defendant, Vesna, is the granddaughter of the late Mrs Cvitan and is the subject of a specific bequest under the 2008 will.
As may be observed from the file number, this matter was commenced by the plaintiff some years ago in 2014. For some time the matter was heavily contested by Srecko, who was at the relevant time legally represented. Srecko pursued challenges against both the validity of the 2008 will and various other issues including a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Fairclough v Cvitan

Details

AGLC: Fairclough v Cvitan [2019] WASC 370
Case: [2019] WASC 370
Decision Date: 15 OCTOBER 2019

CaseChat Overview and Summary

The case of Fairclough v Cvitan involved a dispute over the probate of a will. The deceased had left a will, and the executor sought to have it admitted to probate in solemn form. The court had to determine whether the will should be pronounced in solemn form as requested by the executor. The case was heard in the Supreme Court of Western Australia. The executor argued that the will should be admitted to probate in solemn form, as it would provide a more solemn and formal recognition of the deceased's testamentary wishes. The court was required to consider whether the circumstances of the case warranted the granting of a solemn form probate order under O 73 r 19 of the Rules of the Supreme Court 1971 (WA).

The court considered the relevant legal principles and case law, as well as the specific circumstances of the case. The court noted that solemn form probate is not automatically granted and that the executor must demonstrate that there is a valid reason for the request. The court also considered the potential impact of a solemn form probate on the deceased's family and the public interest in the administration of justice. The court found that the executor had not provided sufficient evidence to demonstrate that a solemn form probate was warranted. The court held that the will should be admitted to probate in the usual form.

The Supreme Court of Western Australia held that the executor had not demonstrated that there was a valid reason for the will to be pronounced in solemn form. The court found that the usual form of probate was appropriate in the circumstances of the case. The court also noted that the decision to grant a solemn form probate should be exercised with caution and only in exceptional circumstances. The court did not grant the executor's request for a solemn form probate and ordered that the will be admitted to probate in the usual form.

Orders