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Radalj v Di Francesco

Radalj v Di Francesco

Case [2003] WASC 57 26 March 2003

Testamentary Capacity

Insane Delusion

Constructive Trust

Succession Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION: RADALJ -v- DI FRANCESCO & ANOR [2003] WASC 57

CORAM: COMMISSIONER JOHNSON QC

HEARD: 20 & 21 FEBRUARY 2003

DELIVERED : 26 MARCH 2003

FILE NO/S: CIV 2585 of 2001

BETWEEN: MIRA RADALJ
Plaintiff
AND
LIDIA DI FRANCESCO
First Defendant
ZLATKO JASA
Second Defendant
(BY ORIGINAL ACTION)
LIDIA DI FRANCESCO
Plaintiff
AND
MIRA RADALJ
First Defendant
ZLATKO JASA by his next friend THE PUBLIC TRUSTEE
Second Defendant
(BY COUNTERCLAIM)

Catchwords:

Wills - Testator with limited understanding of English - Whether will adequately explained to testator - Testamentary capacity - Insane delusion - "Mutual wills"

Legislation:

Nil

Result:

Claim allowed
Counterclaim dismissed

Category: B

Representation:

Original Action

Counsel:

Plaintiff:     Mr J C Curthoys
First Defendant             :     Mr M G Clay
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Martella & Co
First Defendant             :     Martin de Haas
Second Defendant         :     No appearance

Counterclaim

Counsel:

Plaintiff:     Mr M G Clay
First Defendant             :     Mr J C Curthoys
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Martin de Haas
First Defendant             :     Martella & Co
Second Defendant         :     No appearance

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

Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
Bigg v Queensland Trustees Ltd [1990] 2 Qd R 11
Birmingham v Renfrew (1937) 57 CLR 666
Bull v Fulton (1942) 66 CLR 295
Du Maurier v Weschler [2001] NSWSC 4
Gray v Perpetual Trustees Co Pty Ltd [1928] AC 391
In Re Cleaver [1981] 2 All ER 1018
In re Dale [1993] 4 All ER 129
In the Estate of Griffith, unreported; SCt of NSW; CA 40495 of 1994; 7 June 1995
In the Will of Steward [1964] VR 179
Low v Perpetual Trustees WA Ltd, unreported; SCt of WA; Library No 950187; 24 April 1995
Maurier v Weschler [2001] NSWSC 4
Nock v Austin (1918) 25 CLR 519
Osborne v Osborne [2001] VSCA 228
Paraskov v Paraskos [2002] WASC 109
Re Cleaver (deceased) [1981] 2 All ER 1018
Re Cleaver [1981] 1 WLR 939
Re Gardner [1920] 2 Ch 523
Reardon v Mewburn, unreported; SCt of WA; Library No 930049; 9 February 1993
Swain v Mewburn, unreported; FCt SCt of WA; Library No 940100; 3 March 1994
Worth v Clasohm & Anor (1953) 86 CLR 439

Case(s) also cited:

Hudson v Gray (1927) 39 CLR 473

COMMISSIONER JOHNSON QC: Mira Radalj in her capacity as executor of the will of Ante Jasa ("the deceased") is the plaintiff in the primary action which seeks an order that the Court pronounce for the force and validity of the deceased's last will and testament dated 30 June 2000 ("the June 2000 Will"). The defendants to that action are Lidia Di Francesco as first defendant and Zlatko Jasa, by his next friend the Public Trustee, as second defendant. Lidia Di Francesco is the plaintiff in an action by counterclaim which seeks a declaration that wills executed by the deceased and his wife Divna Jasa on 18 November 1986…

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 Radalj v Di Francesco

Details

AGLC: Radalj v Di Francesco [2003] WASC 57
Case: [2003] WASC 57
Decision Date: 26 MARCH 2003

CaseChat Overview and Summary

Radalj v Di Francesco involved the estate of a deceased man, who was a non-native English speaker, and the dispute arose between his widow and his sister. The widow had executed a will on behalf of the deceased, and the sister contested the will, arguing that it was invalid due to the deceased's lack of understanding of English and the failure to adequately explain the will to him. The legal issues in the case centred on whether the testator had testamentary capacity and whether the will was validly executed. The court also needed to determine if the deceased's belief that he and his wife had executed "mutual wills" constituted an insane delusion that would invalidate the will.

The court examined the evidence of the deceased's understanding of English and whether the will had been adequately explained to him. It also considered the deceased's belief in "mutual wills" and whether this belief amounted to an insane delusion. The court held that the deceased had limited understanding of English, but that the will had been adequately explained to him, and that his belief in "mutual wills" did not constitute an insane delusion. The court found that the deceased had testamentary capacity and that the will was validly executed.

As a result, the court ruled in favour of the widow and against the sister. The will was upheld as valid, and the estate was distributed according to the terms of the will. The court found that the deceased's limited understanding of English did not affect the validity of the will, and that the belief in "mutual wills" did not constitute an insane delusion. The court also noted that the deceased had made the will in the presence of witnesses and that there was no evidence of undue influence or coercion. The final orders of the court were that the will was valid and that the estate was to be distributed according to its terms.

Orders