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

1. 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.

2. 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.

3. 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].

4. 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.

5. 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. 

6. I am satisfied that the will of 17 October 2006 was executed in accordance with s 8 of the Wills Act 1970 (WA). I refer in that regard to the affidavits of the two witnesses, Mr Hughes and Ms Jaycock. It is established that the testator died on 19 October 2006 leaving property in Western Australia.

7. No issue as to testamentary capacity was raised on the pleadings. 

8. While the onus of proof lies on the propounder of the will, the authorities establish that a presumption arises from the due execution of a will.  See, for example, Bull v Fulton (1942) 66 CLR 295, 343. In any event, the evidence before me reinforces the position arising from the presumption, namely that the deceased had testamentary capacity at the time of making the October 2006 will. I refer in particular to the evidence in Mr Hughes' affidavit. I also refer to the contents of the will itself. It is established that regard may be had to the contents of the will: Bailey v Bailey (1924) 34 CLR 558, 571.

9. The defence raised an issue of undue influence.  As to the principles respecting undue influence in the context of a probate question, as distinct from a gift in the course of a lifetime, I refer to the decision of Hasluck J in Roebuck v Smoje [2000] WASC 312 [127] ‑ [130]. There is no evidence of coercion or of any conduct of the kind which would amount to undue influence. Indeed, the evidence is to the contrary. I refer again to Mr Hughes' affidavit.

10. The substituted defence also raised an issue as to whether the testator knew and approved the contents of the October 2006 will.  There is no evidence to support that allegation.  A presumption in that regard would arise from the execution of the will but, in any event, Mr Hughes' evidence establishes that the testator knew and understood the contents of his will.

11. For those reasons, I will pronounce in solemn form for the force and validity of the 17 October 2006 will and I will hear from counsel as to the precise form of orders.