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 DefendantBERNARD IKAC
Second DefendantVLADIMIR 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
BARKER J:
Summary of Court's Decision
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.
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.
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.
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.
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.
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…
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- AGLC
- Oreski v Ikac [2007] WASC 195
- Case
- [2007] WASC 195
- Decision Date
CaseChat Overview and Summary
The court examined the statutory requirements for a valid will, emphasising the importance of formality and intention. It considered whether the deceased had the requisite testamentary capacity and if there was clear evidence of the deceased's intention for the document to be his will. The court noted the absence of formal execution, including witnesses, and the lack of clarity in the document's content. It held that the document did not meet the necessary standards for a valid will under the Wills Act. Consequently, the court refused to grant probate of the will and issued letters of administration to the second defendant, who was entitled to administer the estate in the absence of a valid will.
This decision underscores the importance of adhering to the formal requirements of will execution to ensure clarity and validity. The refusal to admit the informal document to probate highlights the court's commitment to protecting the integrity of the deceased's intentions while also respecting legal formalities. The orders reflect the court's conclusion that the document in question did not satisfy the criteria for a valid will, leading to the grant of letters of administration to the appropriate party.
Orders
Orders of the court
1. Grant of probate of will refused
2. Letters of administration granted to second defendant
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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