Oreski v Ikac

Case [2008] WASCA 220


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   ORESKI -v- IKAC [2008] WASCA 220

CORAM:   MARTIN CJ

McLURE JA
NEWNES AJA

HEARD:   1 OCTOBER 2008

DELIVERED          :   31 OCTOBER 2008

FILE NO/S:   CACV 129 of 2007

BETWEEN:   MARTA ORESKI

Appellant

AND

MARIJA IKAC
First Respondent

BERNARD IKAC
Second Respondent

VLADIMIR IKAC
Third Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :BARKER J

Citation  :ORESKI -v- IKAC [2007] WASC 195

File No  :CIV 2048 of 2005

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :BARKER J

Citation  :ORESKI -v- IKAC [2007] WASC 195 (S)

File No  :CIV 2048 of 2005

Catchwords:

Succession - Informal will - Wills Act 1970 (WA), s 34 - Unsigned document in form of will - Whether intended to be will of deceased - Relevant principles - Turns on own facts

Costs - Whether unsuccessful plaintiff in probate action entitled to have costs paid out of estate - Relevant principles - Turns on own facts

Legislation:

Wills Act 1970 (WA), s 34

Result:

Appeal dismissed

Category:    B

Representation:

Counsel:

Appellant:     Mr D L Jones

First Respondent           :     Mr D M Bruns

Second Respondent       :     Mr D M Bruns

Third Respondent         :     Mr D M Bruns

Solicitors:

Appellant:     Banaszak Legal

First Respondent           :     Hoffmans

Second Respondent       :     Hoffmans

Third Respondent         :     Hoffmans

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

Australian Coal and Shale Employees' Federation v The Commonwealth (1953) 94 CLR 621

Equity Trustees Ltd v Levin [2004] VSC 203

Hatsatouris v Hatsatouris [2001] NSWCA 408

House v The King (1936) 55 CLR 499

In the Estate of Masters (Dec), Hill v Plummer (1994) 33 NSWLR 446

In the Estate of Williams (Dec) (1984) 36 SASR 423

Macey v Finch [2002] NSWSC 933

Middlebrook v Middlebrook (1962) 36 ALJR 216

Mitchell v Gard (1863) 164 ER 1280

Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244

Re Application of Brown; Estate of Springfield (1991) 23 NSWLR 535

Re Estate of Hodges (Dec); Shorter v Hodges (1988) 14 NSWLR 698

Re Estate of Perriman (Dec) [2003] WASC 191

Shorten v Shorten (No 2) [2003] NSWCA 60

  1. MARTIN CJ:  I agree with Newnes AJA that this appeal should be dismissed, for the reasons he gives.

  2. McLURE JA:  I agree with Newnes AJA for the reasons he gives that the appeal in respect of the substantive claim should be dismissed.  I would also dismiss the challenge to the costs order.  The appellant did not establish any express or implied material error of fact or law that would enliven this court's power to intervene.

  3. NEWNES AJA:  This is an appeal against a decision of Barker J refusing the appellant's application for a grant of probate of a document said to be the informal will of the late Zivojin Ikac (the deceased) and ordering that letters of administration be granted to the second respondent.  The appellant also appeals against the costs orders subsequently…

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Oreski v Ikac [2008] WASCA 220
Case
[2008] WASCA 220
Decision Date

CaseChat Overview and Summary

The case of Oreski v Ikac involved a dispute over the estate of a deceased person, with the plaintiff, Oreski, asserting an entitlement to a portion of the estate based on an unsigned document. The document in question was claimed to be an informal will. The court was tasked with determining whether the unsigned document was intended to be the will of the deceased, and if so, whether the plaintiff was entitled to any costs associated with the probate action. The matter was heard in the Supreme Court of Western Australia.

The central legal issues the court had to address were whether the unsigned document could be considered an informal will under the Wills Act 1970, and if so, whether the plaintiff was entitled to have any costs associated with the probate action paid from the estate. The court examined the relevant principles governing informal wills and the criteria for determining whether a document was intended to be a will. The court also considered whether the unsuccessful party in the probate action could be awarded costs from the estate, as this was a matter of discretion.

In its reasoning, the court found that the unsigned document did not meet the criteria to be considered an informal will. The court held that the document did not clearly and unambiguously express the deceased's testamentary intentions. Additionally, the court ruled that the plaintiff was not entitled to have costs paid out of the estate, as the costs order was not a necessary consequence of the substantive claim. The appeal was dismissed on both the substantive claim and the costs order.

The court's final orders were to dismiss the appeal in respect of the substantive claim and the costs order, affirming that the plaintiff was not entitled to any part of the estate based on the unsigned document and that the plaintiff was not entitled to have costs paid from the estate.

Orders

Orders of the court

I would dismiss the appeal in respect of the substantive claim and in respect of the costs order.

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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