MARIANNA ENJAKOVIC DECEASED

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.