Oreski v Ikac

[2007] WASC 195

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

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

CORAM:   BARKER J

HEARD:   15-16 AUGUST 2007

DELIVERED          :   30 AUGUST 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:

Wills - Probate - Informal will document found in deceased's motor vehicle - Document typed, unsigned and unwitnessed - Whether document should be admitted to probate as will of the deceased - Whether deceased intended the document to constitute his will

Legislation:

Wills Act 1970 (WA), s 8, s 34

Result:

Grant of probate of will refused
Letters of administration granted to second defendant

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):

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

The Public Trustee (WA) v Drennan [2004] WASC 101

West Australian Trustee Executor and Agency Co Ltd v Holmes [1961] WAR 144

Worth v Clasohm (1952) 86 CLR 439

BARKER J: 

Summary of Court's Decision

1. Jimmy Hudson (the adopted name of Zivojin Ikac) was born in Croatia in 1932 and lived in Australia first between 1956 and 1965 and then again between 1986 and the time of his death in about May 2004. 

2. At his death the deceased had a sister, the plaintiff, and her family, living in Perth.  He also had a wife and two adult sons living in Croatia.

3. Following the death of Jimmy Hudson, David Oreski, the eldest son of the plaintiff, claimed he had discovered a typed but unsigned 'will' of the deceased behind a sheepskin car seat cover in the rear of the deceased's old model Mercedes Benz motor vehicle.

4. The plaintiff applied to the Court for an order confirming the validity of the 'will' document on the basis that it purported to embody the testamentary intentions of the deceased, notwithstanding that it had not been executed in accordance with s 8 of the Wills Act 1970 (WA) (Wills Act). The plaintiff contended the Supreme Court should be satisfied that the deceased intended the document to constitute his will.

5. The plaintiff in essence said that the court should be so satisfied that the deceased intended the document to constitute his will because the document existed, there was evidence that the deceased intended to make a will and the circumstances in which the plaintiff's son claimed he had found the will in the motor vehicle all suggested that the deceased intended the document to constitute his will. 

6. The plaintiff accepted that the document was typed on an old-fashioned typewriter but did not produce any evidence at the trial as to the typewriter that had actually been used to type the document by or on behalf of the deceased.  A typewriter…