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 DefendantZLATKO JASA
Second Defendant(BY ORIGINAL ACTION)
LIDIA DI FRANCESCO
PlaintiffAND
MIRA RADALJ
First DefendantZLATKO 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:
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…
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- AGLC
- Radalj v Di Francesco [2003] WASC 57
- Case
- [2003] WASC 57
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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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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