The Public Trustee v Nezmeskal - [2018] WASC 394

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
Worth v Clasohm (1952) 86 CLR 439

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…

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.

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Details

Case: [2018] WASC 394
Decision Date: 14 DECEMBER 2018

CaseChat Overview and Summary

In the matter of The Public Trustee v Nezmeskal, the Court of Appeal of the Supreme Court of South Australia addressed a dispute concerning the validity of a will and the grant of probate. The deceased, Mr Nezmeskal, had executed a will that left his estate to his niece, Ms. Gyongyosi, rather than his children. The Public Trustee, acting as the executor of the estate, applied for the grant of probate in solemn form, which would have legally binding effect. The children of Mr Nezmeskal contested the grant, arguing that their father suffered from delusions at the time of executing the will, thereby lacking testamentary capacity.

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.

Orders