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

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

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

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.

CaseChat Overview and Summary

The matter before the court involved an application to replace the executor of a will. Mary Irene Stasinowsky, through her attorneys Pauline Margaret Shack and Karen Maree Jones, sought to replace the executor of the will of Irene Stasinowsky, who had passed away. The application was contested by Shack, who was the initial executor of the will. The court was tasked with determining whether the application should be granted and if the existing executor should be replaced.

The legal issues before the court encompassed the criteria for replacing an executor under the relevant statutory provisions and case law. The primary question was whether there was sufficient evidence to support the replacement of the existing executor, and if the applicants had demonstrated that the existing executor was unfit or unsuitable to continue in their role. The court also considered the principles governing the appointment and replacement of executors, as established in previous cases.

In delivering the judgment, the court noted that while the applicants had provided evidence to suggest that the existing executor was unsuitable, they had not demonstrated that there were significant grounds warranting the replacement. The court emphasised that the burden of proof rested with the applicants to show that the existing executor was unfit or unsuitable to continue. The court found that the evidence did not sufficiently support the applicants' case and concluded that the application should be dismissed. The court's decision was based on the existing case law and statutory provisions, which required a high threshold to be met before an executor could be replaced.

As a result of the court's decision, the application to replace the executor was dismissed. The existing executor, Shack, retained their position, and no replacement was made. The court's judgment reinforced the principles established in previous cases, highlighting the importance of demonstrating clear and substantial grounds for the replacement of an executor.

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

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established