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