Mary Irene Stasinowsky by her Attorneys Pauline Margaret Shack and Karen Maree Jones v Shack

[2013] WASC 439

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

CITATION:   MARY IRENE STASINOWSKY by her Attorneys PAULINE MARGARET SHACK and KAREN MAREE JONES -v- SHACK [2013] WASC 439

CORAM:   McKECHNIE J

HEARD:   ON THE PAPERS

DELIVERED          :   6 DECEMBER 2013

FILE NO/S:   CIV 2735 of 2013

MATTER                :In the matter of Section 40(1)(a) of the Wills Act 1970 and in the matter of Mary Irene Stasinowsky

BETWEEN:   MARY IRENE STASINOWSKY by her Attorneys PAULINE MARGARET SHACK and KAREN MAREE JONES

Plaintiff

AND

PETER DONALD SHACK
Defendant

Catchwords:

Wills and intestacy - Application to replace executor - No new principles

Legislation:

Wills Act 1970 (WA)s.40

Result:

Order made

Category:    B

Representation:

Counsel:

Plaintiff:     No appearance

Defendant:     No appearance

Solicitors:

Plaintiff:     Summers Legal

Defendant:     In person

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

Nil

1. McKECHNIE J:  Mary Irene Stasinowsky is nearly 100 years old and unfortunately suffers from dementia.  On 1 November 2013 her general practitioner advised that she does not have testamentary capacity.  There is no chance that she will improve.

2. Mrs Stasinowsky made a will on 22 April 2003.  Under the will she appointed Robert John Stasinowsky and Peter Donald Shack as joint Executors and Trustees of her will.  Because of Mrs Stasinowsky's incapacity she now acts through her daughters, Karen and Pauline, who were appointed under an enduring Power of Attorney on 28 July 1998.

3. They invoke this Court's jurisdiction under the Wills Act 1970 (WA) s 40(1) to remove Peter Donald Shack as joint Executor and in his place name Pauline Margaret Shack and Karen Maree Jones who, together with Robert John Stasinowsky, will be the joint Executors and Trustees of the will.

4. Mr Peter Shack consents to the making of the order and does not wish to be heard.

5. The grounds for the application are set out in the affidavit of Karen Maree Jones sworn 14 November 2013.  I am satisfied that the order sought is appropriate.

Order

1. The will of Mary Irene Stasinowsky made 22 April 2003 is altered by removing Peter Donald Shack as a joint Executor and Trustee and in his place naming Pauline Margaret Shack and Karen Maree Jones as joint Executors and Trustees of the will together with Robert John Stasinowsky.