Young v Mrsa
[2012] WASC 150
•10 MAY 2012
YOUNG -v- MRSA [2012] WASC 150
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 150 | |
| Case No: | CIV:2839/2011 | 22 MARCH 2012 | |
| Coram: | MASTER SANDERSON | 10/05/12 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Statement of claim struck out | ||
| B | |||
| PDF Version |
| Parties: | DENISE YOUNG IVAN JOHN MRSA PETER JOHN MRSA RADOJKA RADICH ZDRAVKA MILAS |
Catchwords: | Practice and procedure Application to strike out statement of claim Statement of claim anticipates defence Turns on own facts |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
IVAN JOHN MRSA
First Defendant
PETER JOHN MRSA
Second Defendant
RADOJKA RADICH
Third Defendant
ZDRAVKA MILAS
Fourth Defendant
Catchwords:
Practice and procedure - Application to strike out statement of claim - Statement of claim anticipates defence - Turns on own facts
Legislation:
Nil
(Page 2)
Result:
Statement of claim struck out
Category: B
Representation:
Counsel:
Plaintiff : Mr R J Nash
First Defendant : Dr P R MacMillan
Second Defendant : Dr P R MacMillan
Third Defendant : Mr S P O'Brien
Fourth Defendant : Mr G Grasso
Solicitors:
Plaintiff : Frichot & Frichot
First Defendant : Friedman Lurie Singh & D'Angelo
Second Defendant : Friedman Lurie Singh & D'Angelo
Third Defendant : Patrick Legal
Fourth Defendant : GG Legal
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 MASTER SANDERSON: This is the first and second defendants' application to strike out the plaintiff's statement of claim. The plaintiff is the daughter of Ljubomir Mate (Zvone) Mrsa. Mr Mrsa died on 25 July 2010. The first and second defendants are sons of the deceased and the third and fourth defendants are daughters of the deceased. Paragraph 3 of the statement of claim pleads on 6 July 2010 the deceased signed a document purporting to be his last will and testament. The statement of claim then goes on to plead, by par 5:
At the time the Will purports to have been executed, there existed reasonable grounds to suspect that the deceased did not have testamentary capacity, alternatively, that the deceased made the Will in circumstances where he was subject to undue influence of the First Defendant.
2 Particulars are then provided of the grounds upon which it is alleged there was a lack of testamentary capacity and the grounds for undue influence. It is, in essence, these paragraphs which are subject to criticism by the first and second defendants. Paragraphs 6 through to 11 deal with what is referred to as an 'Earlier Will' which the plaintiff alleges has been lost.
3 The defendants maintain the particulars of the allegations of lack of testamentary capacity and undue influence could not possibly sustain a case at trial. On that basis, they say the statement of claim ought be struck out. Furthermore, they say the allegations relating to any earlier will are irrelevant and they too ought be struck out.
4 In response, the plaintiff says when doubts are raised about either testamentary capacity or undue influence, the appropriate course is for the executors to seek proof of the will in solemn form. The plaintiff says this can be done by way of counterclaim. As matters stand at the moment, the first and second defendants, who are executors of the deceased's will, have made no attempts to obtain probate. Effectively, the plaintiff says, she had no choice but to bring this matter so the question of the validity or otherwise of the purported will can be determined.
5 In my view, the statement of claim should be struck out. The pleading does not comply with good practice. It anticipates a defence. What the plaintiff is seeking is a declaration the deceased died intestate. There would appear to be no reason why such an application should not be made. It is appropriate it be made by writ because it is clear there will be a contest. The defendants, or any one of them, can then answer the claim by reference to the purported will. That will get the issue before the court. There is no reason why, in a reply or defence to counterclaim, the
(Page 4)
- plaintiff cannot put up arguments as to the invalidity of any purported will. That should lead to a resolution of the dispute between the parties.
6 I would order that the present statement of claim be struck out, with leave to the plaintiff to replead. I will hear the parties as to the precise form of orders and as to costs.
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