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Paraskov v Paraskos

Paraskov v Paraskos

Case [2002] WASC 109 14 May 2002

Wills probate and administration

Testamentary Capacity

Presumption of Regularity

Explanation of Will

Admissibility of Evidence

Succession Law

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PARASKOV -v- PARASKOS [2002] WASC 109

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASC 109
Case No:	CIV:2031/1996	Heard:	18 & 19 APRIL 2002
Coram:	PULLIN J	Delivered:	14/05/02
No of pages:	19	Judgment Part:	1 of 1
Result:	Claim allowed
Category:	A
PDF Version

Parties:	PETER KOSTA PARASKOV STEVE PARASKOS
Catchwords:	Succession Wills probate and administration Will written in English Testator illiterate in English Whether contents explained to testator before signing Whether will explained to testator Evidence Presumption of regularity
Legislation:	Administration Act 1903
Case References:	Astridge v Pepper [1970] 1 NSWR 542 Battan Singh v Amirchand [1948] AC 161 Clay v Karlson [2001] WASC 141 Hughes v National Trustees Executors & Agency Co of Australasia Ltd (1979) 143 CLR 134 In the Will of Clayton (1906) 8 GLR 516 In the Will of Steward [1964] VR 179 McLean Bros & Rigg Ltd v Grice (1906) 4 CLR 835 Middlebrook v Middlebrook (1962) 36 ALJR 216 Nock v Austin (1918) 25 CLR 519 Parker v Felgate (1883) 8 PD 171 Perera v Perera [1901] AC 354 Public Trustee v Permanent Trustee Co Ltd [1999] NSWSC 722 Re Estate of Hodges (decd); Shorter v Hodges (1988) 14 NSWLR 698 Re Flynn [1982] 1 WLR 310 Re Green (decd); Lloyd v Green [1969] WAR 67 Re Herbert (1990) 101 FLR 279 Saunders v Vautier (1841) 4 Beav 115 Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2) (1997) 18 WAR 190 Bailey v Bailey (1924) 34 CLR 558 Banks v Goodfellow (1870) 5 QB 549 Bull v Fulton (1942) 66 CLR 295 Kenny v Wilson (1911) 11 SR(NSW) 460 Love v Love (1914) WALR 131 O'Brien v Trustees of Western Australia Ltd [1999] WASC 185 Orton v Smith (1873) LR 3 P&D 23 Re A Solicitor [1975] QB 475 Roebuck v Smoje [2000] WASC 312 Roos v Karpenkow (1998) 71 SASR 497 Theophanous v Gillespie [2001] QSC 177 Twist v Tye [1902] P 92 Tyrrell v Painton [1894] P 151 West Australian Trustee Executor & Agency Co Ltd v Holmes [1961] WAR 144 Wintle v Nye [1959] 1 WLR 284

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION : PARASKOV -v- PARASKOS [2002] WASC 109 CORAM : PULLIN J HEARD : 18 & 19 APRIL 2002 DELIVERED : 14 MAY 2002 FILE NO/S : CIV 2031 of 1996 BETWEEN : PETER KOSTA PARASKOV

Plaintiff

AND

STEVE PARASKOS

Defendant

Catchwords:

Succession - Wills probate and administration - Will written in English - Testator illiterate in English - Whether contents explained to testator before signing - Whether will explained to testator

Evidence - Presumption of regularity

Legislation:

Administration Act 1903

Result:

Claim allowed

(Page 2)

Category: A

Representation:

Counsel:

Plaintiff : Mr P Mendelow

Defendant : Mr P A Monaco

Solicitors:

Plaintiff : Tolson & Co

Defendant : Godfrey Virtue & Co

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

Astridge v Pepper [1970] 1 NSWR 542
Battan Singh v Amirchand [1948] AC 161
Clay v Karlson [2001] WASC 141
Hughes…

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.

Continue reading Paraskov v Paraskos

Details

AGLC: Paraskov v Paraskos [2002] WASC 109
Case: [2002] WASC 109
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the plaintiff, Peter Kosta Paraskov, sought a pronouncement for the force and validity of his father's last will and testament dated 6 April 1973. The deceased, Kosta Parascos, appointed Joseph Slavko Marian as executor and trustee of the will, bequeathing $500 each to his children, Steve and his married daughters, and the remainder of his estate to his son, Peter. Steve, the defendant, challenged the will's validity, arguing that his father did not understand its contents due to his illiteracy in English and the absence of a notation confirming the will had been explained to him. Steve also pointed to four errors in the will, which he argued indicated that the contents were not explained to his father. The court, Pullin J, found that Mr. Marian's usual practice was to explain the contents of wills to clients who did not speak English, and it was reasonable to infer that this practice was followed in this case. The court dismissed Steve's counterclaim, finding that none of the points raised gave rise to any inference that Mr. Marian did not explain the contents of the will to the deceased before it was signed. The court pronounced for the force and validity of the will in solemn form and dismissed the counterclaim. The defendant was ordered to pay the plaintiff's costs of the action, to be taxed.

Orders