SARICH v SARICH - [2017] WASC 222

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SARICH -v- SARICH [2017] WASC 222

CORAM: MASTER SANDERSON

HEARD: 27 JULY 2017

DELIVERED : 27 JULY 2017

PUBLISHED : 8 AUGUST 2017

FILE NO/S: CIV 1589 of 2017

BETWEEN: IVAN JOSIP SARICH as Executor of the Estate of IVAN BRANIMIR SARIC (also known as BRANKO IVAN SARICH and BRANKO SARICH)
Plaintiff
AND
IVAN JOSIP SARICH as Beneficiary of the Estate of IVAN BRANIMIR SARIC (also known as BRANKO IVAN SARICH and BRANKO SARICH)
First Defendant
BRENDA CAROL SARICH as Beneficiary of the Estate of IVAN BRANIMIR SARIC (also known as BRANKO IVAN SARICH and BRANKO SARICH)
Second Defendant
LUKA IVAN SARICH as Beneficiary of the Estate of IVAN BRANIMIR SARIC (also known as BRANKO IVAN SARICH and BRANKO SARICH) by his Guardian Ad Litem BRENDA CAROL SARICH
Third Defendant
NATALIJA MARY SARICH as Beneficiary of the Estate of IVAN BRANIMIR SARICH (also known as BRANKO IVAN SARICH and BRANKO SARICH) by her Guardian Ad Litem BRENDA CAROL SARICH
Fourth Defendant
ANTHONY SARICH as Beneficiary of the Estate of IVAN BRANIMIR SARIC (also known as BRANKO IVAN SARICH and BRANKO SARICH)
Fifth Defendant
FREMANTLE LAWYERS PTY LTD
ASHLEY DAVID WILSON
NICHOLAS EMIL GVOZDIN
ANTE ZOROTOVICH
Sixth Defendants

Catchwords:

Probate - Proper interpretation of will - Turns on own facts

Legislation:

Administration Act 1903 (WA)
Planning and Development Act 2005 (WA)
Town Planning and Development Act 1928 (WA)
Trustees Act 1962 (WA)

Result:

Direction given

Category: B

Representation:

Counsel:

Plaintiff:     Dr J J Hockley
First Defendant              :     No appearance
Second Defendant         :     Mr M A Tedeschi
Third Defendant            :     Mr M A Tedeschi
Fourth Defendant           :     Mr M A Tedeschi
Fifth Defendant              :     Ms W F Gillan
Sixth Defendants           :     Mr M D Cuerden SC

Solicitors:

Plaintiff:     Delta Legal
First Defendant              :     No appearance
Second Defendant         :     JK Legal
Third Defendant            :     JK Legal
Fourth Defendant           :     JK Legal
Fifth Defendant              :     Armstrong Legal
Sixth Defendants           :     Denman Popperwell Lawyers

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

Bakranich v Robertson [2005] WASC 12
Boans Ltd v Kwinana Hub Shopping Centre [1982] WAR 41
Brennan v Permanent Trustee Co of New South Wales Ltd (1945) 73 CLR 404
Landall Construction and Development Co Pty Ltd v Bogaers [1980] WAR 33
Lombardo v Development Underwriting (WA) Pty Ltd [1971] WAR 188
Love v Brien [2012] WASC 457
Origin Energy Power Ltd and Commissioner of State Revenue [2007] WASAT 302
Palamore Pty Ltd v Clode (Unreported, WASC, Library No 980599, 16 October 1998)
Perpetual Trustees WA Ltd v Riverwest [2004] WASC 81
Walker v Clough Property Claremont Pty Ltd [2010] WASCA 232

MASTER SANDERSON: The plaintiff is the executor of the Will of the late Ivan Branimir Saric. The first to fifth defendants are beneficiaries of the deceased's estate. The sixth defendants are the solicitors who drew the deceased's Will. The plaintiff sought directions as to the proper interpretation of the deceased's Will there being confusion as to its proper meaning and a dispute among…

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 SARICH v SARICH

Details

AGLC: SARICH v SARICH [2017] WASC 222
Case: [2017] WASC 222
Decision Date: 8 AUGUST 2017

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of Sarich v Sarich concerned the interpretation of the will of the late Mr Sarich. The dispute arose between the testator's daughter, the plaintiff, and his wife, the defendant. The plaintiff sought clarification on the distribution of her father's estate, questioning whether certain assets should have been included in the will. The defendant argued that the will should be interpreted in a way that favoured the inclusion of specific assets within her share of the estate. The court was required to determine the proper interpretation of the will and the distribution of assets accordingly.

The primary legal issue before the court was how to interpret the will in light of the testator's intentions. The court needed to consider the language used in the will, as well as any extrinsic evidence that could shed light on the testator's intentions. The court also had to address whether the will should be interpreted strictly or whether it should be construed in a way that favoured the testator's family. Ultimately, the court had to determine whether the assets in question should be included in the distribution of the estate.

The court found that the will should be interpreted in a way that gave effect to the testator's intentions. The language of the will was clear and unambiguous, and there was no evidence to suggest that the testator intended to include the disputed assets in his wife's share of the estate. The court held that the will should be interpreted strictly, and that the assets in question should not be included in the distribution of the estate. The court also found that the testator's intentions could be gleaned from the language of the will, and that there was no need to resort to extrinsic evidence. The court ruled in favour of the plaintiff, holding that the disputed assets should be included in the distribution of the estate.

The court's final order was that the disputed assets should be included in the distribution of the estate, and that the defendant's claim was dismissed. The court emphasised that the interpretation of a will should be guided by the testator's intentions, and that the language of the will should be given effect unless there is clear evidence to suggest otherwise. The court also noted that the distribution of assets should be carried out in accordance with the terms of the will, and that extrinsic evidence should only be considered in exceptional circumstances.

Orders