MARIANNA ENJAKOVIC DECEASED - [2008] SASC 72

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction: Application)
In the Estate of MARIANNA ENJAKOVIC DECEASED
[2008] SASC 72
Judgment of The Honourable Justice Gray
14 March 2008
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - CONSTRUCTION AND EFFECT OF TESTAMENTARY DISPOSITIONS - GENERALLY - CHANGING, TRANSPOSING, OMITTING OR SUPPLYING WORDS - OMITTING WORDS
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION - PROBATE AND LETTERS OF ADMINISTRATION - JURISDICTION AND DISCRETION OF THE COURT - SOUTH AUSTRALIA
Ex parte application by executor for omission of words from copy of will to be admitted to probate – executor filed affidavit in support of application but did not make submissions –words sought to be omitted explained testatrix’s reason for not making a disposition to a son – words sought to be omitted inferred inappropriate and possibly dishonest conduct by this son – consideration of jurisdiction of court to omit words of a scandalous, offensive or defamatory nature – consideration of principles to be applied – whether words sought to be omitted effected any disposition of property or had any testamentary purpose – whether words sought to be omitted could be characterised as scandalous, offensive or defamatory – whether words should be omitted in exercise of court’s discretion.
Held: Application dismissed – court’s power to omit words from probate must be exercised with great care and only in a clear case – words sought to be omitted have no direct dispositive effect but explain testatrix’s reason for not making a disposition to son – reasonable person would not be so offended by words as to require their omission.
The Probate Rules 2004 (SA) r 66.01, r 66.02 and r 77; Administration and Probate Act 1919 (SA) s 5; Defamation Act 2005 (SA) s 26, referred to.
In the Will of JP, deceased (1922) 39 WN (NSW) 228; Re Estate of L (deceased) (1996) 185 LSJS 406; In the Estate of Ward (2006) 244 LSJS 326; In the Estate of Hawke (1973) 6 SASR 278; In the Estate of Adler (1989) 155 LSJS 53; D’orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1; Rasheed v Rasheed (1999) 73 SASR 346; Re Maxwell (1929) 140 LT 471; In the Estate of Hall, deceased [1943] 2 All ER 159; In the Will of O’Reilly [1927] VLR 533; In the Goods of Honywood [1871] LR 2 P&D 251; Re Bryden [1975] Qd R 210; Re Fenwick [1972] VR 646; In the Estate of T, deceased (1961) 105 Sol Jo 325; In the Estate of White [1914] P 153; Re N [1950] VLR 139; In the Goods of Bowker [1932] P 93; Re Mark Alfred Clarkson (Unreported, Supreme Court of Victoria, Fullagar J, 27 October 1987, BC8700477); Legal Practice Board v Said (Unreported, Supreme Court of Western Australia, Seaman J, 12 January 1994, BC9401499); Densley v Mertin [1943] SASR 144 at 145; Bennett v Southwark LBC [2002] ICR 881; Worcester v Smith [1951] VLR 316; John Fairfax & Sons Ltd v Hook (1983) 47 ALR 477;

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.

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Details

Case: [2008] SASC 72
Decision Date: 14 March 2008

CaseChat Overview and Summary

The application arose from a will executed by Marianna Enjakovic, who passed away, and was heard in the Supreme Court of South Australia. The executor of the estate sought to have certain words omitted from the copy of the will to be admitted to probate. The words in question pertained to the testatrix’s reasons for not making a disposition to one of her sons, which were inferred as inappropriate and possibly dishonest conduct by the son. The executor's application was made without accompanying written submissions.

The court was required to determine whether it had the jurisdiction to omit words from a will that were of a scandalous, offensive, or defamatory nature. Additionally, the court had to consider the principles guiding the exercise of such discretion, whether the words sought to be omitted had any dispositive effect or testamentary purpose, and if they could be characterised as scandalous, offensive, or defamatory. The court needed to decide whether the words should be omitted based on its discretion.

The court dismissed the application, highlighting that its power to omit words from a will must be exercised with great care and only in a clear case. The words sought to be omitted did not have a direct dispositive effect but explained the testatrix’s rationale for not making a disposition to her son. The court concluded that a reasonable person would not find the words offensive enough to warrant their omission. Therefore, the application was dismissed, and no words were omitted from the will.

Orders