JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: THE PUBLIC TRUSTEE -v- NEZMESKAL [2018] WASC 394
CORAM: PRITCHARD J
HEARD: 13 NOVEMBER 2017
DELIVERED : 14 DECEMBER 2018
FILE NO/S: CIV 2626 of 2014
BETWEEN: THE PUBLIC TRUSTEE
Plaintiff
AND
MARIJANA NEZMESKAL
First Defendant
ANTONIJA KLARIC
Second Defendant
MILKO KNEZEVIC
Third Defendant
RUDOLF MORI
Fourth Defendant
Catchwords:
Wills and estates - Grant of probate in solemn form - Testamentary capacity - Effect of delusionary disorder - Whether presumption of duly executed will displaced
Legislation:
Wills Act 1970 (WA)
Result:
Grant of probate in solemn form in respect of the 1976 Will
Category: B
Representation:
Counsel:
| Plaintiff | : | Ms W Gillan |
| First Defendant | : | Mr R J Nash |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | Mr M Curwood |
Solicitors:
| Plaintiff | : | The Public Trustee |
| First Defendant | : | GG Legal |
| Second Defendant | : | No appearance |
| Third Defendant | : | No appearance |
| Fourth Defendant | : | Frichot & Frichot |
Case(s) referred to in decision(s):
Bailey v Bailey (1924) 34 CLR 558
Banks v Goodfellow (1870) LR 5 QB 549
Bull v Fulton (1942) 66 CLR 295
Burnside v Mulgrew [2007] NSWSC 550
Collins by her next friend Poletti v May [2000] WASC 29
Frizzo v Frizzo [2011] QCA 308
Frizzo v Frizzo [2011] QSC 107
Kerr v Badran [2004] NSWSC 735
Lock v Phillips [2014] WASC 92
Public Trustee v Royal Perth Hospital Medical Research Foundation Inc [2014] WASC 17
Re Estate of Griffith (dec'd); Easter v Griffith (1995) 217 ALR 284
Re Groffman (deceased) [1969] 1 WLR 733
Timbury v Coffee (1941) 66 CLR 277
West Australian Trustee Executor and Agency Co Ltd v Holmes [1961] WAR 144
PRITCHARD J:
Mrs Neda Bilich died on 6 March 2007 at the age of 90 years. Her husband, Ljubomir Bilich, to whom she had been married for 53 years, predeceased her by several weeks.[1] Their only son had died in 1958 as a young child, and Mrs Bilich had no other children.
[1] Exhibit 1.14.
Mrs Bilich made a will dated 9 November 1976 (1976 Will). In the 1976 Will, Mrs Bilich appointed the Public Trustee as the executor and trustee of her will, and after the payment of debts, left the whole of her estate to her sisters, Slavka (Vida) Lukovic and Anka Mori, in equal shares, but if they predeceased her their share would pass to those of their children who survived Mrs Bilich. Both Ms Lukovic and Mrs Mori predeceased Mrs Bilich. Ms Lukovic left no children. Mrs Mori had three children who survived Mrs Bilich. They are the First, Second and Fourth Defendants.
Mrs Bilich made a will dated 19 December 1990 (1990 Will). In that will, Mrs Bilich appointed Ms Millie Srhoy as executor, and left the whole of her estate to the Fourth Defendant. In August 2007, Ms Srhoy authorised the Public Trustee to obtain probate of the 1990 Will.
The Public Trustee has…
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- Case
- [2018] WASC 394
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether Mr Nezmeskal had the requisite testamentary capacity when he executed the will. Specifically, the court needed to determine if the presumption of duly executed will was displaced by evidence of delusions. The court had to weigh the evidence presented regarding Mr Nezmeskal's mental state and decide if his delusions were so severe as to impact his understanding of the nature and effect of the will.
The Court of Appeal, in considering the evidence, concluded that while Mr Nezmeskal suffered from delusions, there was no direct evidence that these delusions influenced his understanding of the will. The court emphasised the presumption of testamentary capacity, which places the onus on the challenger to prove incapacity. The evidence presented by the children was deemed insufficient to rebut this presumption. Therefore, the court upheld the grant of probate in solemn form, finding that the will was validly executed. The Court of Appeal held that the delusions did not invalidate the will, as there was no clear connection between the delusions and the testator's testamentary actions.
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