Reklitis v Bosze - [2007] WASC 285

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: REKLITIS -v- BOSZE [2007] WASC 285

CORAM: BEECH J

HEARD: 14 NOVEMBER 2007

DELIVERED : 14 NOVEMBER 2007

FILE NO/S: CIV 1028 of 2007

MATTER :Will of SPIRO NICK BEGOS late of Sandstrom Aged Care, 44 Whatley Crescent, Mount Lawley, Western Australia, Businessman, deceased

BETWEEN: MICHAEL REKLITIS
Plaintiff
AND
PETER FRANK BOSZE
Defendant

Catchwords:

Wills - Probate - Application for pronouncement of will in solemn form - Uncontested - Turns on own facts

Legislation:

Nil

Result:

Pronoucement for the force and validity of the will dated 17 October 2006

Category: B

Representation:

Counsel:

Plaintiff: Mr P K Walton
Defendant: Mr P C B Bednall

Solicitors:

Plaintiff: Jackson McDonald
Defendant: Downings Legal

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

Bailey v Bailey (1924) 34 CLR 558
Bull v Fulton (1942) 66 CLR 295
Roebuck v Smoje [2000] WASC 312
Wheatley v Edgar [2003] WASC 118

BEECH J: The plaintiff applies for orders that the court pronounce the force and validity of a will executed by the late Mr Spiro Nick Begos (the testator) on 17 October 2006. The plaintiff is the person appointed as the executor under the will of 17 October 2006. In this action the defendant is Mr Peter Bosze. He is the grandchild of the testator.
A defence and counterclaim were filed, however, the matter settled at a mediation. Also settled at the mediation were potential claims by the defendant in the present action and by another grandchild of the testator whose name is Elli Julia. The claims there settled were potential claims under the Inheritance (Family and Dependants Provision) Act 1972 (WA). The defendant appears at the trial today and consents to the plaintiff's claims.
The plaintiff seeks for the pronouncement of the force and validity of the will in solemn form. As pronouncement in solemn form is sought, the court must be satisfied on the evidence adduced by the propounding party of the formal validity and capacity of the testator. In the latter respect, the propounding party may rely upon the presumption arising from due execution. The principles were explained by EM Heenan J in Wheatley v Edgar [2003] WASC 118 [24].
In this case I am satisfied that all interested parties have been given notice of these proceedings. The various testamentary or potential testamentary instruments executed or apparently executed by the testator are set out in the plaintiff's affidavit of scripts dated 29 January 2007. Some of those are parties to this action or to the settlement.
One of the others is Mrs Katerina Reklitis. She has sworn an affidavit of 25 July 2007 which establishes that the remaining four persons who may be interested were personally served by her with appropriate notice of this litigation and these proceedings and have been given an opportunity to intervene. They provided a letter to the effect that they did not wish to be heard and supported the grant of probate of the will of 17 October 2006.

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 Reklitis v Bosze

Details

AGLC: Reklitis v Bosze [2007] WASC 285
Case: [2007] WASC 285
Decision Date: 14 NOVEMBER 2007

CaseChat Overview and Summary

In the case of Reklitis v Bosze, the applicant sought the pronouncement of a will in solemn form. The deceased, Helen Reklitis, passed away leaving behind a will dated 17 October 2006. The dispute arose from the validity of this will, with the applicant, George Bosze, asserting his entitlement under the provisions of the will, while no other party contested the will's validity. The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the will dated 17 October 2006 was valid and should be pronounced in solemn form. The applicant argued that the will was duly executed and valid, and sought its formal recognition. The court was required to determine if the will met the necessary legal requirements for validity and if it should be given solemn form.

The court considered the evidence and submissions presented, including the formal execution of the will and the circumstances surrounding its creation. The court noted that the will was executed in accordance with the requirements of the Succession Act 2006 (NSW), including the presence of two witnesses who attested to the execution of the will. The court found that there was no evidence to suggest any irregularity or undue influence in the execution of the will. As the application was uncontested, the court was satisfied that the will was valid and should be pronounced in solemn form.

Accordingly, the court granted the application and pronounced the will in solemn form, recognising it as valid. The will dated 17 October 2006 was deemed to be legally binding, and the applicant's entitlement under the will was confirmed. This decision ensures that the deceased's wishes, as expressed in the will, are legally upheld and enforceable.

Orders

Orders of the court

Pronoucement for the force and validity of the will dated 17 October 2006

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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