Oreski v Ikac

Case [2007] WASC 195 (S)


ORESKI -v- IKAC [2007] WASC 195 (S)


Link to Appeal :

SUPREME COURT OF WESTERN AUSTRALIACitation No:[2007] WASC 195 (S)
Case No:CIV:2048/200515-16 AUGUST 2007
Coram:BARKER J30/08/07
5/10/07
13Judgment Part:1 of 1
Result: Defendants' costs to be taxed to be paid out of estate of deceased
Plaintiff to bear own costs of action
B
PDF Version
Parties:MARTA ORESKI
MARIJA IKAC
BERNARD IKAC
VLADIMIR IKAC

Catchwords:

Costs
Wills
Probate
Action for proof in solemn form of informal will
General rule as to costs
Exceptions in probate proceedings
Unsuccessful plaintiff to bear own costs

Legislation:

Rules of the Supreme Court 1971 (WA), O 66 r 1
Supreme Court Act 1935 (WA), s 37
Wills Act 1970 (WA), s 8

Case References:

Argo v Whittaker [2007] WASC 131
Becker v Public Trustee of New South Wales [2006] NSWSC 1146
Briginshaw v Briginshaw (1938) 60 CLR 336
Burnside v Mulgrew; Re Estate of Grabrovaz [2007] NSWSC 550
Clay v Karlson [2001] WASC 141
Mitchell v Gard (1863) 164 ER 1280
Nock v Austin (1918) 25 CLR 519
Oreski v Ikac [2007] WASC 195
Paraskov v Paraskos [2002] WASC 109
Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244
Public Trustee v Whitworth [2007] WASC 170
Re Cutcliffe's Estate; Le Duc v Veness [1959] P 6
Re Estate of Grounds; Page v Sedawie [2005] NSWSC 1311
Re Green (dec'd); Lloyd v Green [1969] WAR 67
Re Herbert Brothers (dec'd) (1990) 101 FLR 279
Reichelt v Reichelt [2007] WASC 79
Roebuck v Smoje [2001] WASC 95
Shorten v Shorten [2001] NSWSC 363
Szabo v Battye (No 2) [2006] NSWSC 1392
Twist v Tye [1902] P 92


JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
    IN CIVIL
CITATION : ORESKI -v- IKAC [2007] WASC 195 (S) CORAM : BARKER J HEARD : 15-16 AUGUST 2007 DELIVERED : 30 AUGUST 2007 SUPPLEMENTARY
DECISION : 5 OCTOBER 2007 FILE NO/S : CIV 2048 of 2005 BETWEEN : MARTA ORESKI
    Plaintiff

    AND

    MARIJA IKAC
    First Defendant

    BERNARD IKAC
    Second Defendant

    VLADIMIR IKAC
    Third Defendant

Catchwords:

Costs - Wills - Probate - Action for proof in solemn form of informal will - General rule as to costs - Exceptions in probate proceedings - Unsuccessful plaintiff to bear own costs


(Page 2)



Legislation:

Rules of the Supreme Court 1971 (WA), O 66 r 1


Supreme Court Act 1935 (WA), s 37
Wills Act 1970 (WA), s 8

Result:

Defendants' costs to be taxed to be paid out of estate of deceased


Plaintiff to bear own costs of action

Category: B


Representation:

Counsel:


    Plaintiff : Mr D L Jones
    First Defendant : Mr D M Bruns
    Second Defendant : Mr D M Bruns
    Third Defendant : Mr D M Bruns

Solicitors:

    Plaintiff : Banaszak Legal
    First Defendant : Hoffmans
    Second Defendant : Hoffmans
    Third Defendant : Hoffmans



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

Argo v Whittaker [2007] WASC 131
Becker v Public…

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Oreski v Ikac [2007] WASC 195 (S)
Case
[2007] WASC 195 (S)
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CaseChat Overview and Summary

The case of Oreski v Ikac, heard in the Supreme Court of Western Australia, involved a dispute over the validity of a purported will of Jimmy Hudson. The plaintiff, Marta Oreski, sought to have the document proved as the deceased's will, while the defendants, the deceased's relatives, opposed this claim. The court found that the document was not intended by the deceased to be his will and did not constitute a valid testamentary disposition. Following this decision, the plaintiff sought an order that her costs, as well as those of the defendants, be paid out of the deceased's estate. The defendants argued that the plaintiff should bear her own costs of the action.

The court considered the general rule that costs follow the event, unless one of two exceptions applies in probate matters. The first exception applies where the testator or a residual beneficiary is at fault, causing the litigation. The second exception applies where it is reasonable to propound or challenge the purported will. The court found that the first exception did not apply in this case, as there was no evidence of fault on the part of the deceased or any residual beneficiary. However, the court did find that the second exception applied, as it was reasonable for the plaintiff to commence proceedings to clarify the status of the document her son claimed to have found in the deceased's motor vehicle. Nonetheless, the court determined that it was not reasonable for the plaintiff to maintain the proceedings after receiving expert advice that the typewriter used to type the document was not the one the deceased had access to and used himself. The court concluded that the plaintiff should bear her own costs of the action, while the defendants were entitled to have their costs to be taxed paid out of the estate of the deceased.

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