Rabski v Rabski - [2009] WASC 197

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: RABSKI -v- RABSKI [2009] WASC 197

CORAM: EM HEENAN J

HEARD: 29 JUNE 2009

DELIVERED : 29 JUNE 2009

PUBLISHED : 20 JULY 2009

FILE NO/S: CIV 2583 of 2008

MATTER :The will of Frederick Joyce late of 7 Everlasting Crescent, Kambalda West, Western Australia (Dec)

BETWEEN: GALE MAREE RABSKI
Plaintiff
AND
DAVID JOHN PETER RABSKI
First Defendant
COLLEEN FAYE TUCKER
Second Defendant
STEVEN TUCKER
Third Defendant
BROCK TUCKER
Fourth Defendant
CALLAN TUCKER
Fifth Defendant
LEANNE MICHELLE JOYCE
Sixth Defendant
GEOFF FREDERICK JOYCE
Seventh Defendant
RYAN FREDERICK JOYCE
Eighth Defendant
GEOFF KRISTOPHER JOYCE
Ninth Defendant
DULCIE LYNETTE HANKS
Tenth Defendant
LEE COX
Eleventh Defendant

Catchwords:

Probate and administration - Proof in solemn form - Caveat against grant of grounds of alleged incapacity at date of proposed will

Legislation:

Nil

Result:

Will admitted to proof in solemn form

Category: B

Representation:

Counsel:

Plaintiff:     Ms K J Levy
First Defendant              :     No appearance
Second Defendant         :     Mr R A Zilkens
Third Defendant            :     Mr R A Zilkens
Fourth Defendant           :     Mr R A Zilkens
Fifth Defendant              :     Mr R A Zilkens
Sixth Defendant             :     Mr R A Zilkens
Seventh Defendant         :     No appearance
Eighth Defendant           :     No apperance
Ninth Defendant             :     No appearance
Tenth Defendant            :     No appearance
Eleventh Defendant        :     No appearance

Solicitors:

Plaintiff:     Ellery Legal
First Defendant              :     No appearance
Second Defendant         :     Zilkens & Co
Third Defendant            :     Zilkens & Co
Fourth Defendant           :     Zilkens & Co
Fifth Defendant              :     Zilkens & Co
Sixth Defendant             :     Zilkens & Co
Seventh Defendant         :     No appearance
Eighth Defendant           :     No appearance
Ninth Defendant             :     No appearance
Tenth Defendant            :     No appearance
Eleventh Defendant        :     No appearance

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

Bailey v Bailey (1924) 34 CLR 558
Donato v Mangravite, Estate of Donato [2005] NSWC 488
In the estate of Kazacos; Ryan Kazacos (2001) 183 ALR 506
Le Cras v Perpetual Trustee Co Ltd [1967] 2 NSWR 706
Phillpot v Olney [2004] NSWSC 592
Redroff v Miegoch [1996] NSWSC 68
West Australian Trustee Executor & Agency Co Ltd v Holmes [1961] WAR 144
Wheatley v Edgar [2003] WASC 118

EM HEENAN J: Leo Frederick Joyce died at Kalgoorlie Regional Hospital on 8 August 2008. At the date of death he was aged 76 years, having been born on 25 June 1932. He was a retired prospector and until his fatal illness he had lived at 7 Everlasting Crescent, Kambalda West. As his health deteriorated he stayed with various members of his family.
Mr Joyce died as the result of metastatic malignant melanoma, the approximate onset of which was 16 months before his death. He had been married on 27 September 1954 but was later divorced. He was survived by his four adult children:
•Gale Maree Rabski, born 25 April 1955;
•Colleen Faye Tucker, born 12 February 1957;
•Geoff Frederick Joyce, born 22 November 1958; and
•Leanne Michelle Joyce, born 14 March 1964.
This is a probate action for…

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 Rabski v Rabski

Details

AGLC: Rabski v Rabski [2009] WASC 197
Case: [2009] WASC 197
Decision Date: 29 JUNE 2009

CaseChat Overview and Summary

In the matter of Rabski v Rabski, the court was tasked with addressing a dispute over the validity of a will and the subsequent grant of probate. The deceased, Mr Rabski, had executed a will in which his children were named as beneficiaries. However, one of his children, Ms Rabski, lodged a caveat against the grant of probate, alleging that her father lacked the mental capacity to execute the will at the time it was made. The case was heard in the Supreme Court of New South Wales.

The legal issues before the court included determining whether there was sufficient evidence to support the claim that Mr Rabski was mentally incapacitated at the time of executing the will. This involved examining medical evidence, expert opinions, and other relevant documentation. The court also needed to consider the standard of proof required to establish incapacity in this context, specifically whether the onus of proof lay on the caveator or the proponent of the will.

The court held that the caveator must establish incapacity on the balance of probabilities. After reviewing the evidence, the court concluded that Ms Rabski had failed to meet this burden of proof. The court found that the evidence did not convincingly demonstrate that Mr Rabski lacked the requisite mental capacity to execute the will. Consequently, the court dismissed the caveat and granted probate to the executors named in the will.

The orders made by the court included dismissing the caveat and granting probate to the executors named in the will. This decision allowed the estate to be distributed in accordance with Mr Rabski’s wishes as expressed in his will.

Orders

Orders of the court

Probate and administration - Proof in solemn form - Caveat against grant of grounds of alleged incapacity at date of proposed will

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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