JABADO -v- DA PRATO [2016] WASC 98

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 98
Case No:	CIV:2608/2013	Heard:	14 & 15 MARCH 2016
Coram:	TOTTLE J	Delivered:	1/04/16
No of pages:	17	Judgment Part:	1 of 1
Result:	Plaintiff's action dismissed
Category:	B
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Parties:	GHASSAN AHMAD JABADO ROBERT DA PRATO as Executor of the Estate of MARIA JABADO IVANA DA PRATO GIUSEPPINA DI FLORIO MICHELE D'ORAZIO
Catchwords:	Wills Where deceased had formal will Where deceased later had draft will prepared but did not execute it Whether informal will Wills Act 1970 (WA), s 32 Whether draft will had embodied deceased's testamentary intentions Whether deceased intended draft will to be her will Where draft will did not embody deceased's testamentary intentions Turns on own facts
Legislation:	Wills Act 1970 (WA), s 8, s 32
Case References:	Deeks v Greenwood [2011] WASC 359 Oreski v Ikac [2008] WASCA 220

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : JABADO -v- DA PRATO [2016] WASC 98 CORAM : TOTTLE J HEARD : 14 & 15 MARCH 2016 DELIVERED : 1 APRIL 2016 FILE NO/S : CIV 2608 of 2013 MATTER : The Will of Maria Jabado late of 58 Carawatha Avenue, Mount Nasura in the State of Western Australia, Poultry Farmer (Dec) BETWEEN : GHASSAN AHMAD JABADO

Plaintiff

AND

ROBERT DA PRATO as Executor of the Estate of MARIA JABADO

First Defendant

IVANA DA PRATO

Second Defendant

GIUSEPPINA DI FLORIO

Third Defendant

MICHELE D'ORAZIO

Fourth Defendant

Catchwords:

Wills - Where deceased had formal will - Where deceased later had draft will prepared but did not execute it - Whether informal will - Wills Act 1970 (WA), s 32 - Whether draft will had embodied deceased's testamentary intentions - Whether deceased intended draft will to be her will - Where draft will did not embody deceased's testamentary intentions - Turns on own facts

Legislation:

Wills Act 1970 (WA), s 8, s 32

Result:

Plaintiff's action dismissed

Category: B

Representation:

Counsel:

Plaintiff : Mr M F Holler

First Defendant : Mr D Markovich

Second Defendant : Mr S Penglis

Third Defendant : Mr S Penglis

Fourth Defendant : Mr S Penglis

Solicitors:

Plaintiff : Lawton Gillon

First Defendant : Murfett Legal

Second Defendant : Fletcher Law

Third Defendant : Fletcher Law

Fourth Defendant : Fletcher Law

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

Deeks v Greenwood [2011] WASC 359
Oreski v Ikac [2008] WASCA 220

1 TOTTLE J: The plaintiff, Mr Ghasson Jabado, asks the court to declare that the will of his late wife, Mrs Maria Jabado, made on 23 November 1988, and by which she left her entire estate to the second, third and fourth defendants, was revoked by a draft will prepared on her behalf in September 2004.

2 Mrs Jabado died on 27 September 2010 aged 76. On 24 April 2012 a grant of probate in respect of the will was made in favour of the first defendant, Mr Robert Da Prato.

3 To…

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 Jabado v Da Prato

Details

AGLC: Jabado v Da Prato [2016] WASC 98
Case: [2016] WASC 98
Decision Date: 1 APRIL 2016

CaseChat Overview and Summary

Jabado v Da Prato is a case that revolves around the interpretation of the deceased's testamentary intentions when a formal will exists, but a draft will was also prepared but not executed. The dispute came before the court with the plaintiff, Jabado, seeking to have the draft will recognised as the valid testamentary document. The defendant, Da Prato, argued that the draft did not embody the deceased's intentions and thus could not supersede the formal will.

The central legal issue before the court was whether the draft will could be considered a valid testamentary document under the Wills Act 1970 (WA), section 32. Specifically, the court needed to determine if the draft will had indeed embodied the deceased's testamentary intentions and if the deceased intended it to be her will. The court examined whether the draft will contained sufficient evidence to indicate that it reflected the deceased's final wishes. After thorough analysis, the court found that the draft will did not embody the deceased's testamentary intentions, and thus, the deceased did not intend it to be her will. The decision hinged on the unique facts of the case, and the court ultimately concluded that the draft will could not replace the formal will.

The court's reasoning was based on the absence of clear evidence that the draft will represented the deceased's final testamentary intentions. Given that the formal will was still in effect and had not been revoked, the draft will could not be recognised as the deceased's will. Therefore, the court dismissed the plaintiff's action, confirming that the formal will remained the valid testamentary document. The final orders of the court were that the plaintiff's action was dismissed, and the formal will would continue to govern the distribution of the deceased's estate.

Orders

Orders of the court

Plaintiff's action dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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