RAKICH & ORS -v- STANICICH & ORS [2004] WASC 212

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 212
Case No:	CIV:2824/2001	Heard:	13 SEPTEMBER 2004
Coram:	MASTER NEWNES	Delivered:	22/10/04
No of pages:	8	Judgment Part:	1 of 1
Result:	Informal will valid
Category:	B
PDF Version

Parties:	JANET RAKICH LEN RAKICH ANNE BRINKWORTH BRIAN JOHN STANICICH KEVIN ANTHONY DUNDO JANE ANNE RAKICH MAX LEEDS CUTLER JUNE BARBARA CUTLER
Catchwords:	Wills Informal Will Whether has effect pursuant to s 34 of Wills Act 1970 Turns on own facts
Legislation:	Administration Act 1903 (WA) Wills Act 1970 (WA), s 8, s 34
Case References:	In the Estate of Dale (1983) 32 SASR 215 In the Estate of Williams (Dec) (1984) 36 SASR 423 In the matter of the will of Lobato; Shield v Caratozzolo (1991) 6 WAR 1 James v Burdekin (1993) WAR 298 The Estate of Kevin John Hines & Anor v Hines [1999] WASC 111 The Public Trustee v Head [2003] WASC 91 In the Estate of Szylowicz (Dec) (1978) 19 SASR 263 Re Levy (Dec) (No 2) [1957] VR 662 Wheatley v Edgar [2003] WASC 118

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : RAKICH & ORS -v- STANICICH & ORS [2004] WASC 212 CORAM : MASTER NEWNES HEARD : 13 SEPTEMBER 2004 DELIVERED : 22 OCTOBER 2004 FILE NO/S : CIV 2824 of 2001 BETWEEN : JANET RAKICH

LEN RAKICH

ANNE BRINKWORTH

Plaintiffs

AND

BRIAN JOHN STANICICH

KEVIN ANTHONY DUNDO

First Defendants

JANE ANNE RAKICH

Second Defendant

MAX LEEDS CUTLER

JUNE BARBARA CUTLER

Third Defendants

Catchwords:

Wills - Informal Will - Whether has effect pursuant to s 34 of Wills Act1970 - Turns on own facts

(Page 2)

Legislation:

Administration Act 1903 (WA)

Wills Act 1970 (WA), s 8, s 34

Result:

Informal will valid

Category: B

Representation:

Counsel:

Plaintiffs : Mr J G M Fiocco

First Defendants : Mr I Carija

Second Defendant : Mr M N Solomon

Third Defendants : Mr J D Steedman

Solicitors:

Plaintiffs : Fiocco's Lawyers

First Defendants : I Carija

Second Defendant : Gadens Lawyers

Third Defendants : Karp Steedman Ross-Adjie

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

In the Estate of Dale (1983) 32 SASR 215
In the Estate of Williams (Dec) (1984) 36 SASR 423
In the matter of the will of Lobato; Shield v Caratozzolo (1991) 6 WAR 1
James v Burdekin (1993) WAR 298
The Estate of Kevin John Hines & Anor v Hines [1999] WASC 111
The Public Trustee v Head [2003] WASC 91

Case(s) also cited:

In the Estate of Szylowicz (Dec) (1978) 19 SASR 263
Re Levy (Dec) (No 2) [1957] VR 662
Wheatley v Edgar [2003] WASC 118

(Page 3)

1 MASTER NEWNES: This action has been set down for trial under O 73 r 19, the parties having agreed to a compromise of the action.

2 The issue in the action is whether a certain document (the "informal Will") is valid as the Will of the late Joseph…

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 Rakich v Stanicich

Details

AGLC: Rakich v Stanicich [2004] WASC 212
Case: [2004] WASC 212
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the case of Rakich & Ors v Stanicich & Ors [2004] WASC 212 was heard. The dispute centered on whether an informal will, prepared by the deceased, Joseph Lenny Rakich, was valid. The plaintiffs, Rakich's sisters, argued that the will was not properly signed and should not be recognized as the deceased's last testament, while the defendants, including the deceased's wife and executors named in the will, contended that the will was valid under the Wills Act 1970 (WA).

The central legal issue was whether the informal will met the requirements of s 34 of the Wills Act 1970, which allows for the validation of a document as a will if the deceased intended it to constitute their will, despite non-compliance with s 8's formalities. The court had to determine whether the deceased intended the document to be his will, which required satisfaction on the balance of probabilities.

The court found that the informal will was indeed a valid testamentary document. It was established that the will was prepared by a solicitor at the deceased's request and that the deceased had taken steps to finalize it, including completing a name and signing the document. Despite the lack of witnessing, the court was satisfied that the deceased intended for the document to serve as his will. The court dismissed the plaintiffs' claims and granted letters of administration cum testamento annexo to the deceased's wife, in accordance with the agreed orders.

Orders