Wills Act 1970 (WA), s 8, s 34

Letters of administration granted to second defendant

1 Jimmy Hudson (the adopted name of Zivojin Ikac) was born in Croatia in 1932 and lived in Australia first between 1956 and 1965 and then again between 1986 and the time of his death in about May 2004.

2 At his death the deceased had a sister, the plaintiff, and her family, living in Perth. He also had a wife and two adult sons living in Croatia.

3 Following the death of Jimmy Hudson, David Oreski, the eldest son of the plaintiff, claimed he had discovered a typed but unsigned 'will' of the deceased behind a sheepskin car seat cover in the rear of the deceased's old model Mercedes Benz motor vehicle.

4 The plaintiff applied to the Court for an order confirming the validity of the 'will' document on the basis that it purported to embody the testamentary intentions of the deceased, notwithstanding that it had not been executed in accordance with s 8 of the Wills Act 1970 (WA) (Wills Act). The plaintiff contended the Supreme Court should be satisfied that the deceased intended the document to constitute his will.

5 The plaintiff in essence said that the court should be so satisfied that the deceased intended the document to constitute his will because the document existed, there was evidence that the deceased intended to make a will and the circumstances in which the plaintiff's son claimed he had found the will in the motor vehicle all suggested that the deceased intended the document to constitute his will.

6 The plaintiff accepted that the document was typed on an old-fashioned typewriter but did not produce any evidence at the trial as to the typewriter that had actually been used to type the document by or on behalf of the deceased. A typewriter that David Oreski had earlier produced to the plaintiff's solicitor with advice that it was the typewriter that the deceased had used for the purpose, was later shown by expert evidence provided to the plaintiff's solicitor not to have been the typewriter. At the trial the plaintiff led no evidence as to how or on what typewriter the document had been prepared.

7 In the result, the Court was not satisfied that the deceased intended the 'will' document to constitute the will of the deceased, notwithstanding the claim by David Oreski that he had found the document behind the car seat cover in the deceased's motor vehicle. The facts that the document had been typed on an old-fashioned typewriter which had not been identified in evidence, that the document was a legally sophisticated document in its terms and expressions, and that the document had not been signed by the deceased, led the Court not to be satisfied on the totality of the evidence that the document was the deceased's document, or that he intended it, without more, to operate as his will.

8 In these circumstances, there being no other will, the court dismissed the plaintiff's claim and made an order, on the counterclaim of the defendants, that letters of administration in respect of the estate of the deceased be granted to the second defendant.

9 The issue in these proceedings is whether a typed document that on its face purports to be the last will of Jimmy Hudson (the deceased) on which the name of the deceased is typed at the foot thereof together with the purported date of its making, but which is not signed by the deceased nor witnessed in the manner required by s 8 of the Wills Act, should nonetheless be accepted as the will of the deceased pursuant to s 34 of the Wills Act.

10 Section 34 of the Wills Act is headed 'Informal wills' and provides:

A document purporting to embody the testamentary intentions of a deceased person is a will of that person, notwithstanding that it has not been executed in accordance with section 8, if the Supreme Court is satisfied that the deceased intended the document to constitute his will.

11 Section 8 of the Wills Act sets out what is required by way of execution generally for a will to be valid. It provides as follows:

Subject to the provisions of Part VI and section 34, a will is not valid unless ­

(a) it is in writing;

(b) it is signed by the testator or signed in his name by some other person in his presence and by his direction, in such place on the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as his will;

(c) the testator makes or acknowledges the signature in the presence of at least 2 witnesses present at the same time; and

(d) the witnesses attest and subscribe the will in the presence of the testator but no publication or form of attestation is necessary.

12 The plaintiff claims that the typed document that purports to be the 'will and testament' of the deceased, and which bears his typed name at the foot thereof and is dated 2 February 2004, which names her as the 'executrix' of the will, and also one of the principal beneficiaries under the will, should formally be propounded as the last will of the deceased by the Court under s 34 of the Wills Act.

13 The defendants, who are respectively the widow and two sons of the deceased, accept that, for the purposes of s 34 of the Wills Act, there exists a document that purports to embody the testamentary intentions of the deceased, but say there is no evidence to satisfy the Court that the deceased by some act or words demonstrated that it was his then intention that the document should without more on his part operate as his will.

14 By par 1 of the re­amended defence and counterclaim filed by the defendants in the proceedings, the defendants plead that the document was neither 'left' nor prepared by the deceased, but rather was prepared by the plaintiff and/or her son David Oreski and/or her son Dennis Oreski.

15 At the hearing of these proceedings, counsel for the defendants made it plain that the defendants were not in a position to lead evidence themselves to make out the plea that the plaintiff or one of her two sons was responsible for the creation of the document, but put the plaintiff to proof of her claim that the document was indeed that of the deceased.

16 The defendants also put the plaintiff to proof that the deceased had the relevant testamentary capacity and knowledge to make a will at the relevant date shown on the document.

17 The defendants also counterclaim for an order that letters of administration be granted to the second defendant in respect of the estate of the deceased.

18 The parties adduced evidence to explain the deceased's background and relationship with the plaintiff and her two sons, and his relationship with his widow, the first defendant, and their two sons, the second and third defendants. This was done essentially to support the contentions of the parties respectively that the terms of the purported will of the deceased were consistent or inconsistent with stated intentions concerning testamentary dispositions that he had evinced during his lifetime, especially in his later years.

19 The deceased was known in Australia as Jimmy Hudson. However, his birth name was Zivojin Ikac. He was born on 28 July 1932 in Croatia, which country, following the Second World War, with Serbia and other jurisdictions became known as Yugoslavia.

20 On 8 August 1956, the deceased married the first defendant.

21 On 23 October 1956, the second defendant, Bernard Ikac, was born to the deceased and the first defendant.

22 In November 1956, the deceased emigrated from Yugoslavia to Australia.

23 It appears that the deceased ­ who in Australia changed his name to Jimmy Hudson ­ lived in Australia from November 1956 until about May 1965.

24 On 24 February 1965, the deceased became an Australian citizen.

25 However, in July 1965 the deceased returned to Yugoslavia on a visitor's visa and lived with the first defendant.

26 On 1 November 1966, the third defendant, Vladimir Ikac, was born.

27 While in Australia up until 1965, it appears that the deceased first lived in Sydney, then in Brisbane and finally in Darwin. It appears that later in this period he held the position of Head Chef with Qantas, the Australian airline.

28 In 1967, after returning to Yugoslavia, and following the birth of the third defendant, the deceased obtained a residence permit which enabled him to live and work in West Germany. It appears the deceased lived and worked in West Germany without his wife and children between about 1968 and 1986. The deceased went into the business of operating a restaurant or restaurants in West Germany.

29 The second defendant, Bernard Ikac, says that during these years, the defendants travelled to West Germany each year to be with their husband and father, during school holidays, and he often came to Yugoslavia to visit them. Bernard Ikac says that he often did work in his father's restaurant in West Germany at these times.

30 In 1986, the deceased returned to Australia, while his wife and children remained in Yugoslavia.

31 By the time the deceased returned to Australia in 1986, it appears that other members of his family had migrated to Australia and were living in Perth. For example, the plaintiff, Marta Oreski, a younger sister of the deceased by some 11 years, migrated to Australia on 2 July 1974.

32 The plaintiff had initially left Yugoslavia at the age of 29 and moved to West Germany where she worked in the deceased's restaurant. After about a year she made the decision to migrate to Australia.

33 Before the deceased decided to move back to Australia in 1986, he had visited the plaintiff and her family in 1984, staying with them for three months.

34 Following the deceased's return to Australia in 1986, he lived with the plaintiff and her family for about two or three years. The deceased then purchased a home at 49 Dutton Crescent, Hamersley, a Perth suburb (the Dutton Crescent property). Later he acquired another property at Two Rocks, north of Perth.

35 According to Mr Vinko Shain ­ an accountant and registered tax agent who was consulted from time to time by the deceased and to whom the deceased was apparently referred by an uncle of Mr Shain who was a friend of the deceased in Germany ­ when the deceased arrived in Australia he brought with him about $100,000 in cash. However, Mr Shain did not suggest in evidence that he considered the financial resources of the deceased at that time were limited to that sum. Indeed, one gains the impression that the deceased had other financial resources, about which more is said below. It also appears that about the time the deceased returned to Australia in 1986 he imported from Germany a Mercedes Benz motor vehicle, about which more is also said below.

36 The second defendant, Bernard Ikac, said that there was nothing unusual about the arrangement of a father leaving Yugoslavia to work in another country such as West Germany and his family remaining in Yugoslavia. He stated that many Croatian families were separated as someone had to make money and Germany was a good place to do that while the family was cared for at home.

37 He also says that when his father decided to move to Australia in 1986 he was no longer dependent on his father and there were family discussions to the effect that once his father had settled in Australia his family in Croatia would join him in Australia. This was confirmed by other witnesses, such as Mr Shain from his discussions with the deceased. Bernard Ikac says that in 1988, his mother gave the deceased nearly all the money she had in a bank account in Croatia to assist his resettlement in Australia. Bernard Ikac produced his mother's bank account transaction book showing a withdrawal of 49,000 DM (Deutschmark) and says that this money helped the deceased to purchase the Dutton Crescent property.

38 Bernard Ikac travelled to Australia in 1989 and was in Perth for about six months from 18 March 1989 to 16 September 1989. He says that he lived with his father at the Dutton Crescent property and they got on very well. However, he only had a tourist visa for six months and then had to leave. He says that the plan then was still that the rest of the family would come out to Australia to join his father.

39 Bernard Ikac said that he helped his father to redecorate the Dutton Crescent property while he was living with him in it.

40 Bernard Ikac also says that when he stayed with his father during 1989 the deceased told him that he had dedicated the Two Rocks property to him as it happened to be bought on his birthday.

41 Bernard Ikac says that in January 1990 his brother Vladimir was married in Yugoslavia and Vladimir and his wife had a baby in May 1990. He says this caused family plans of resettling in Australia to be delayed. He says that his mother had a visa to travel to Australia which was issued on 21 January 1990, but she did not use it because of Vladimir's changed arrangements. Then, Bernard Ikac says, the Croatian/Serbian war started in 1991 and caused more delays.

42 Bernard Ikac says that in 1991, before the war, the deceased visited Croatia and that was the last time he did so. He did not return after the war. However, Bernard Ikac says that in 1993 his parents met in Munich, Germany, and decided that, because of the war and Vladimir's young child and marriage, they should postpone plans for his mother's migration to Australia.

43 Nonetheless, Bernard Ikac says that he met his father in Germany on a number of occasions thereafter: in 1991, 1993, 1999 and 2001. Additionally, he kept in contact with his father by telephone about twice a year. He says his mother spoke to his father a few times each year by telephone.

44 The plaintiff puts an altogether different interpretation on the relationship between the deceased and his wife and sons in Croatia. The plaintiff says that the deceased never intended that his wife should join him in Australia and, in essence, did not get along with his family. The plaintiff implies that the relationship between the deceased and the first defendant and his sons was not a strong one.

45 The plaintiff says that in 1989 when the deceased had visited Yugoslavia he apparently had a 'large argument' with his son Vladimir. The discrepancy in the dates the parties refer to is noted, though all accept that there was some sort of disagreement in the late 1980s or early 1990s when the deceased was visiting his family in Yugoslavia. Unfortunately, the deceased's passport for these years was not produced to the Court.

46 The plaintiff says that the deceased returned to Australia prematurely because of this argument. She says that the deceased wanted all of his family to come and live in Australia for a better life, however they did not wish to join him. After that, the plaintiff says, the deceased did not wish to have any further dealings with his family. He never returned to Yugoslavia. The plaintiff says that from that point on, the deceased said that he had cut all ties with his family.

47 In support of this being so, the plaintiff recalls the second defendant, Bernard Ikac, telephoning her from Germany in about 1998 because he wanted to migrate to Australia and needed a 'guarantee letter' or sponsor from either her or the deceased. She says that the deceased and she both declined to be his sponsor. She says that she did so because she was advised by the deceased not to sponsor Bernard as he did not want anything to do with Bernard. Bernard accepted the substance of this evidence.

48 The plaintiff also says that after the deceased came to Australia in 1986 and began living with her, he mentioned that he had an Italian girlfriend in Germany. However, despite some contact between them, the girlfriend never migrated to Australia to join the deceased.

49 In about June 1992 the deceased signed documents that enabled his wife to acquire the title or some ownership rights to an apartment in which she lived in Opatija, Croatia. Mr Shain says the deceased was content to make this arrangement. It is not clear whether the deceased provided any funds, or needed to, for this transaction to be concluded.

50 On 7 May 2004, the deceased was found dead at his home at 172 Moolanda Boulevard, Kingsley (the Moolanda Boulevard property). He had about a year earlier purchased the Moolanda Boulevard property in place of the Dutton Crescent property, for reasons discussed further below.

51 On learning of the death of the deceased, the plaintiff contacted the first defendant to let her and her family know of his passing.

52 Between the time the deceased returned to Australia in 1986 and commenced living with the plaintiff and her family and his death in or about May 2004, it is not at all clear by what means the deceased earned income, if indeed he earned income. He was ostensibly not employed in any particular calling. However, it appears he financially supported or guaranteed financial arrangements that another nephew of his, who also lived in Perth ­ Jugoslav (Jugo) Ikac ­ had entered into. Jugo Ikac apparently operated a restaurant in Northbridge. However, it is not entirely clear whether the deceased was involved in the setting up or operation of the restaurant or had any financial interest in it.

53 In October 2003, on the advice of Mr Shain, the deceased consulted a solicitor, Ms Damira Banaszak of Banaszak Legal. The deceased did not know Ms Banaszak and had not previously consulted her firm. Ms Banaszak explained to the deceased his obligations under some loan and mortgage documents. The deceased explained to her the reason for the facility was to refinance some existing loans and a new property investment, which totalled $400,000. In her file note dated 15 October 2003, Ms Banaszak noted that the deceased and his nephew 'run the El Toro Restaurant in Northbridge ... the security being offered is a mortgage over both homes of Jimmy and his nephew Jugoslav Ikac'.

54 In passing it should be noted that in her file note, Ms Banaszak recorded that she had recommended to the deceased 'that he review his will'.

55 The evidence of the plaintiff and her two sons, David Oreski and Dennis Oreski, and that of Mr Shain, as well as the evidence of the second defendant, Bernard Ikac, all confirmed that the deceased, in relation to his business dealings, was highly secretive. He was given to travelling internationally, at times quite frequently. He led Mr Shain to believe that he was, in effect, representing a wealthy Jewish man from the United States of America in relation to possible business opportunities in different parts of the world. He apparently referred to this man as the 'Boss'. However, Mr Shain never did learn of the identity of this person. Having heard Mr Shain's account of all of this, the Court was left with the impression that Mr Shain himself was not thoroughly convinced that the Boss actually existed.

56 On other occasions the deceased would contact Mr Shain and arrange for Mr Shain to visit him at his home, where he would ask Mr Shain to follow up on certain business ideas that he had, such as selling sugar to Brazil or iron ore to China. Again, in his evidence Mr Shain indicated that he was never at all convinced that any of these business ideas had any substance. Mr Shain rather would meet the deceased out of politeness and because of the fact that his uncle was an old friend of the deceased when the deceased lived in Germany.

57 Again the Court is left with the clear impression that while the deceased from time to time asked Mr Shain to follow up on some business proposal or another, nothing much was actually required of Mr Shain and certainly nothing came of these proposals. On at least one occasion Mr Shain advised the deceased that his ideas for selling iron ore to China were impractical. It probably would not have been polite, even if accurate, for Mr Shain to have told the deceased that his ideas were 'fanciful'.

58 Nonetheless, the deceased between 1986 and his death in May 2004 ­ a period of some 18 years ­ seems to have had sufficient funds, assets, or other income first to acquire the Dutton Street property and later to buy the Two Rocks property as an investment and to pursue his business interests. Additionally, his funds were sufficient to enable him regularly to fly around the world.

59 Bernard Ikac recalls that when he met his father in Germany in 1999, his father was in good health, had a rental car and was driving through Europe by himself. He says that his father also told him that he had helped the plaintiff meet her mortgage payments. From this evidence I understood Bernard Ikac to suggest the deceased contributed to the plaintiff's outgoings when he was residing with the plaintiff and her family at her Balga property.

60 In Australia, it seems the deceased conducted his business interests through the Marco Hong Polo Finance and Exporting Pty Ltd. Mr Shain said, however, he never actually completed anything more than nil tax returns for this company as it never generated any income, and the deceased never earned any money personally from all of his activities to warrant the lodgement of a personal tax return.

61 Nonetheless, as noted, and confirmed by people such as Mr Shain, the deceased made numerous trips overseas, particularly to China, and his passport shows this. Indeed, a perusal of the deceased's passport for the year 2001 discloses that he was away from Australia for about 200 of the 365 days in that year.

62 All in all then, the agreed assessment by witnesses on both sides is that the deceased was highly secretive, travelled extensively, had no obvious sources of income from any occupation that he regularly engaged in, but obviously had sufficient financial resources, including what he had initially brought to Australia from Germany in 1986, to keep up his travels.

63 Even so, it is clear, on all of the evidence, that from 1986 until his death in 2004, the deceased was close to his sister, the plaintiff, and her family in Perth. The evidence shows that he was quite fond of the plaintiff's two sons, David and Dennis Oreski. The boys would at various times drive the deceased to the airport when he was travelling. Indeed that was the usual arrangement. It appears, however, they did not drive him in his Mercedes Benz because the deceased did not like anyone else to drive the vehicle.

64 There is no evidence of the deceased having made a will, save the disputed document which the plaintiff seeks to propound as the will of the deceased in these proceedings, which bears the typed date 2 February 2004, just three months before the death of the deceased.

65 We know from the evidence of Ms Banaszak, the solicitor consulted by the deceased in October 2003 about the loan and security documentation he was then required to sign, that she mentioned to him in passing that he should 'review his will'. However, the deceased never consulted Ms Banaszak again about any matter, including the making of a will.

66 Mr Shain says that when he and the deceased left Ms Banaszak's offices on this occasion he drove the deceased home in his own car and in the course of doing so said to him that he should have a will. He says that the deceased responded: 'I will, I will, don't worry it's all under control'. Mr Shain says that the next thing the deceased said to him in the car was: 'Who else do I have but Marta and her boys?'

67 At this time, in 2003, Mr Shain says he learned from the deceased about the deceased's unhappiness, following his visit to Yugoslavia in 1989, that his wife and his two boys had not agreed to emigrate to Australia to live with him. He was told by the deceased that the deceased and Vladimir had had a 'very serious argument' and he no longer wished his family to join him in Australia and did not want to have any further contact with them.

68 When the deceased said to Mr Shain: 'Who else do I have but Marta and her boys?', Mr Shain says he told the deceased that he still had two sons, his 'flesh and blood'. However, he says that the deceased responded by telling him about the argument he had had with Vladimir on the last trip in 1989 when he tried to get the family to move out to Australia. The deceased said that because of what Vladimir had said to him, if he had had a gun in his hand he would have shot him because he did not deserve to be spoken to like that after all he had done for them. Mr Shain says he replied to the deceased that nonetheless the boys were still his sons, his flesh and blood. Mr Shain says the deceased did not want to speak about his family anymore and he had no further discussions with him after that time regarding a will.

69 Mr Shain explained that the Dutton Crescent property was sold because the deceased was short of money and the Moolanda Boulevard property was a cheaper property. This enabled some money to be freed up to enable the deceased to pursue his business interests.

70 Mr Shain also said that the deceased had consulted him about applying for an Australian aged pension just prior to the sale of the Dutton Crescent property. Mr Shain explained to the deceased that under the pension income and asset test rules he did not qualify, because of the ownership of the property at Two Rocks.

71 It seems that a little while before his death the deceased had not been well. The plaintiff said he had heart problems for a number of years before his death. She was aware that her sons had taken him to Seacrest Medical Centre when he complained about chest pains. He was sent to Sir Charles Gairdner Hospital. From then on she says he was constantly short of breath.

72 The plaintiff says that she remembers having dinner with the deceased and her family at their home in March 2004 ­ two months or less before his death. She said the deceased was sitting next to her and looking very sick. He said to her 'not good' and patted his chest, referring to being short of breath. She says that she told him that he needed to do his will and he looked her straight in the eye and said: 'Don't worry Sele [sister]'. As a result the plaintiff says she said nothing more. Indeed, she said that this was the only time she and the deceased ever spoke about a will.

73 It appears that despite problems with his health the deceased continued to travel in pursuit of his business interests. For example, he went on an overseas trip to China on 11 February 2004. It will be noted that the document purporting to be his will has the typed date of 2 February 2004 on it.

74 The body of the deceased was discovered in the Moolanda Boulevard property when the plaintiff and her son David became concerned that no-one had been able to contact the deceased for a number of days, and he had not visited the plaintiff for some days. David Oreski and Mr Shain visited the property. When they could not raise the deceased they contacted the police, who then visited the premises and gained entry. The deceased was found by the police dead on his bed.

75 A preliminary search of the deceased's house for a will by David Oreski failed to locate one. However, when the police discovered the body of the deceased, they also found in the house a wallet belonging to the deceased. In it David Oreski came upon the business card of Banaszak Legal. When the search for a will proved fruitless, David Oreski contacted Ms Banaszak to see if the deceased had left a will with her. However, this did not happen immediately. It appears that David Oreski contacted Ms Banaszak on 31 May 2004 about this, nearly two weeks after the funeral for the deceased on 18 May 2004, which in turn was some 11 days after the discovery of the deceased's body on 7 May 2004.

76 Ms Banaszak then telephoned Mr Shain in case he knew if a will existed. She then telephoned David Oreski to tell him that she had not prepared a will and she did not know if one existed.

77 Then on 3 June 2004, Ms Banaszak was consulted by David Oreski concerning the position with 'probate' of the deceased's affairs in circumstances where there did not appear to be a will.

78 In cross-examination David Oreski accepted that he knew, prior to his claimed discovery of the document that the plaintiff claims to be the deceased's will, that if the maker of a will wishes to exclude a person such as their spouse, who might otherwise be expected to benefit under the will as a beneficiary, then it is important for the maker of the will to explain in the will why the person has been excluded otherwise there might be grounds for the will to be challenged.

79 Relatively soon after the deceased's body was discovered, there were two clean­ups of the Moolanda Boulevard property. There appears to have been a clean­up inside the house during which materials of no significance or value were disposed of in a skip bin ordered by the plaintiff for the purpose and placed on the verge of the premises. Amongst other things thrown out in this clean­up of the inside of the house was an old manual typewriter belonging to the deceased. The plaintiff, who said she saw the typewriter, said it was in poor condition. Indeed she said a number of 'wires' on it were 'broken'. She said that Mr Shain, who was also present, said to throw it out. However, Mr Shain later denied that he had given any such advice. The plaintiff said that the typewriter had been found in the games room of the house.

80 Both David Oreski and Dennis Oreski said they recalled that the deceased had had an old typewriter. Both could recall seeing it at the Dutton Crescent property more than one year before the death of the deceased. They were not aware whether it was at the Moolanda Boulevard property and, if so, where it was kept.

81 David Oreski gave evidence that he and his brother at various times had helped the deceased in relation to matters concerning his business by preparing documents on their computer. David Oreski claimed that the deceased did use a typewriter although he admitted he had not actually seen him use a typewriter. He estimated that 95% of the work for the deceased's business was done on their computer.

82 Dennis Oreski recalled seeing an old typewriter. He could not recall when he last saw it. He could recall seeing some paper in it at the Dutton Crescent property, but that was a long time ago. He thought he was then in his late teens or early 20s. At the time of giving evidence he was 29. His brother David was 31.

83 Sometime after the funeral ­ according to David Oreski, whose memory seemed clearest about the date, probably in early June ­ David Oreski and Dennis Oreski collected the deceased's Mercedes Benz motor vehicle, which had been left parked in the driveway of the Moolanda Boulevard property, and drove it to their mother's house and left it in the driveway.

84 David Oreski says that while the deceased normally maintained the vehicle in an immaculate condition, it was in need of a clean and the sheepskin car seat cover on the back seat of the vehicle was 'dusty' and in need of cleaning. He decided to clean out the inside of the car because he wanted to make sure it would be ready in case it needed to be sold. He suggested this was on 10 June 2004 ­ which is a week after he had consulted Ms Banaszak. He says he took the car seat cover off the rear seat and when doing so a large envelope together with a large fold-up map of Australia fell away from the seat cover to the floor of the car. He said these things were placed behind the upright portion of the car seat cover where a passenger's back would be, not under the seated portion.

85 David Oreski says that the envelope he found in the car was not sealed so he opened it and found what to him looked like the typed will of his uncle. David Oreski says he immediately told his mother what he had found. Soon after he called Ms Banaszak to find out what to do next.

86 David Oreski referred to the fact that the sheepskin car seat cover on the rear seat, which was produced in evidence, has a zip in it in about the middle portion. He said that this would enable a person such as the deceased to open the zip and slip in behind the car seat cover things such as the envelope and the map of Australia. (The map was not produced in evidence.)

87 David Oreski was adamant that he had found the envelope containing the typed document that purports to be the will of the deceased in this way and expressly rejected the proposition put to him by counsel for the defendants that he had created or typed the 'will' document.

88 It seems on the evidence of David Oreski, therefore, that he found the 'will' document behind the car seat cover over the back seat of the deceased's Mercedes Benz on or about 10 June 2004. On the evidence, David Oreski's father heard about the discovery from David when he returned home from work that night, as did his brother, Dennis Oreski.

89 Dennis Oreski was cross-examined as to what interest he had displayed in the discovery of the 'will' document. He said that he did not express any interest in seeing where the document had been found. When further questioned, he said that he had possibly spoken to his brother David about the discovery although he could not recall any such conversation.

90 It was put to Dennis Oreski in cross-examination that, much later again, during a conversation with members of his family at which Bernard Ikac was present, which involved some argument, he had said words to the effect of, 'I am going to tell Bernard'. However, he denied this.

91 It appears on the evidence that soon after 10 June 2004, the plaintiff and David Oreski consulted Ms Banaszak for advice about the 'will' document.

92 The statement of claim of the plaintiff in the proceedings dated 31 August 2005 claims that the 'will' document constitutes the will of the deceased and seeks an order of the Court pronouncing the force and validity of the will and an order that there be a grant of probate in solemn form of the will to the plaintiff.

93 The claim in support of the document being the final will of the deceased has depended largely throughout on the claim of David Oreski that he found the document behind the rear car seat cover on or about 10 June 2004.

94 In the evidence of the plaintiff and other witnesses called by the plaintiff in support of the plaintiff's claim at trial, no witness suggested that the deceased had typed the document on any particular typewriter belonging to the deceased or anyone else. Indeed, as recounted above, the plaintiff gave evidence about an old typewriter, the wires of which were broken, being thrown out in the skip bin during the first clean­up of the deceased's house quite soon after the body of the deceased was found in May 2004. This happened well before the funeral and well before David Oreski claims he found the 'will' document on or about 10 June 2004.

95 However, by facsimile dated 14 February 2006 from Banaszak Legal (written by Ms Banaszak) to Hoffmans Barristers and Solicitors for the defendants, the plaintiff's solicitors advised as follows:

We advise that we are in possession of the type writer that we have been instructed was used by the deceased to type the document the subject of these proceedings. We anticipate obtaining expert evidence to substantiate this claim. In order to reduce the costs to the estate, please confirm if you have instructions to agree that the type writer in our possession is in fact the same type writer which was that used by the deceased to type the relevant document in order to avoid the need for expert evidence. If you require an inspection of the type writer please let us know.

96 The evidence before the Court is that David Oreski delivered the typewriter in question to the offices of Banaszak Legal. Ms Banaszak said that she had, in earlier consultation with him and the plaintiff, raised the question whether there was a typewriter that the deceased may have used to create the document. It was following this that the typewriter was delivered to her office. It was her understanding, on the basis of what David Oreski had told her, that the typewriter delivered to her office was indeed the typewriter that had been used to type the 'will' document.

97 David Oreski gave evidence that he delivered the typewriter to Ms Banaszak. It belonged to his late cousin Jugo Ikac. He said that his uncle, the deceased, had borrowed the typewriter from Jugo on many occasions. He had learnt this from Jugo. At the time of the trial Jugo had passed away some one year earlier.

98 However, by facsimile dated 13 August 2007 ­ two days before the trial of this proceeding commenced ­ from Banaszak Legal to Hoffmans Barristers and Solicitors, the solicitors for the plaintiff advised that:

With respect to a typewriter we refer you to Mr Vinko Shain's Witness Statement and confirm that we are not in possession of the deceased's typewriter.

99 In evidence Ms Banaszak made it plain that as a result of the plaintiff obtaining expert advice concerning the typewriter produced to her by David Oreski, the plaintiff no longer maintained the assertion set out in the facsimile of 14 February 2006 ­ some 18 months earlier ­ that the typewriter in question was 'used by the deceased to type the document the subject of these proceedings'.

100 Therefore, at the trial neither the plaintiff nor any witness called by her pointed to any particular typewriter upon which she claimed the 'will' document had been prepared. Indeed, the plaintiff's case overall was such that no witness for the plaintiff suggested how the document actually came to be prepared, save for the general implication that the deceased must have been responsible for it.

101 The 'will' document is annexed to these reasons. All parties agree that it was typed on an 'old-fashioned' typewriter, not prepared on a modern computer and printer. This is rather confirmed by the fact that there are at least three typing mistakes or errors within the document. For example, in cl 1 the letter 'B' in 'BOULEVARD' seems to be typed over in some way. Then in cl 2 the letter 'E' where it appears for the third time in 'MERCEDES' also seems to have been typed over an earlier letter, possibly the letter 'W' to which the letter 'E' key is normally next to on a typewriter keyboard. Then in the word 'FEBRUARY' at the very end of the document, the letter 'E' appears to have been typed over the letter 'W' once again. One would not expect this sort of typing over to occur on a computer system. Either the incorrect letter would appear in the document or it would have been corrected. Typing over would not be possible. In any event, the parties agree that the claimed 'will' document has been prepared on a typewriter.

102 Apart from the overtyping mistakes just pointed to, the claimed 'will' is quite accurate grammatically; it only has one obvious grammatical or spelling error in it. In the second unnumbered paragraph it is stated 'I APPOINT ME SISTER' when one would expect the word 'my' to have been used instead of the word 'me'. It is possible that this is a grammatical error by the maker of the document. It is also possible it is simply an oversight and a spelling mistake. Otherwise there are no obvious grammatical errors. I should add, however, that in cl 5 at the end of the first line, the expression 'MY WILL' is used. The maker did not use the word 'me' in that context. I should also add in passing that the letter 'Y' in that clause and word seems to be overtyped on a comma. That may well be yet another typing mistake or error in the production of the document.

103 I should also add that the evidence adduced in the proceedings concerning the adequacy and the proficiency of the deceased in expressing himself orally and in writing in the English language is not terribly detailed. As noted, according to David Oreski, 95% of documents prepared for the deceased's business were prepared by David Oreski or Dennis Oreski on their computer. This suggests the deceased was not overly proficient either in the creation of documents or the written English language. Mr Shain said that the deceased did not produce any or at least many documents at their business meetings. Mr Shain considered the deceased was 'quite an educated man and he could write quite well in English'.

104 The principles which govern the operation of s 34 of the Wills Act in a case such as this are broadly agreed by counsel for the parties.

105 As I found in Re Estate of Perriman (dec) [2003] WASC 191, by reference to the earlier authorities in both Western Australia and other jurisdictions, for the Court to express the requisite satisfaction before validating an informal will under s 34, three questions arise:

(2) Does that document purport to embody the testamentary intentions of the deceased?

(3) Does the evidence satisfy the Court that the deceased, by some act or words, demonstrated that it was his or her then intention that the document should, without more on his or her part, operate as his or her will?

106 In this case, the defendants accept that there is a document ­ namely, the 'will' document that David Oreski claims he found behind the car seat cover in the rear of the deceased's Mercedes Benz. Counsel for the defendants also concedes that that document purports to embody the testamentary intentions of Jimmy Hudson. The defendants, however, reject the proposition that that document is a document created by the deceased and so intended by the deceased to operate, without more, as his will.

107 The defendants also raise the question of the testamentary capacity of the deceased as of the date of the 'will' document.

108 In the case of a formal will in respect of which the propounder is not obliged to rely on a provision such as s 34 of the Wills Act for its validity, it is generally accepted that the sanity and understanding of the testator is the subject of a rebuttable presumption as to capacity and that the propounder of the will is only required to satisfy the onus where such evidence in rebuttal exists: West Australian Trustee Executor and Agency Co Ltd v Holmes [1961] WAR 144, 146 (Hale J); Worth v Clasohm [1952] HCA 67; (1952) 86 CLR 439, 453. The basis of this rebuttable presumption is that a will properly executed is, in the absence of evidence to the contrary, presumed to have been made by a person of competent understanding.

109 The question has been raised whether, in the case where the will or codicil depends for its validity on the application of a provision such as s 34 of the Wills Act, any presumption of testamentary capacity arising from the execution of the testamentary document is relevant: see The Public Trustee (WA) v Drennan [2004] WASC 101.

110 In The Public Trustee (WA) v Gelling (ex tempore judgment, CIV 1176 of 2003, WASC, 8 June 2004), in which I issued a 'draft judgment' or unreported judgment, I referred to these authorities, including that of Le Miere J in The Public Trustee v Drennan, and noted the submission of the Public Trustee that the approach of Le Miere J in The Public Trustee v Drennan at [24] involved a 'very narrow construction' of what had previously been said about the presumption in respect of formally executed wills, and that the same presumption ought to apply in respect of an informal will, at least where the Court has found that that document does satisfy the requirements of s 34 of the Wills Act, in that the Court is satisfied that the deceased intended that document to constitute that person's will.

111 I then said I could see some force in the submissions made by counsel for the Public Trustee. I observed that one can see how it might be argued that if the Court is satisfied that an informal document was intended by the deceased to constitute his or her will, then the presumption that ordinarily applies in respect of formally executed wills might be thought to apply also to that document, in which case it would be necessary for some question to be raised concerning the validity of that informal will and the usual principles would apply. I then referred to Worth v Clasohm in this regard, such that the effect of the doubt initially is to require a vigilant examination of the whole of the evidence, but, that examination having been made, residual doubt is not enough to defeat a claim for probate unless it is felt by the Court to be substantial enough to preclude a belief that the document propounded is the will of the testator or testatrix who possessed sound mind, memory and understanding at the time of its execution.

112 In The Public Trustee v Gelling, I found it was not necessary to resolve the question of the rebuttable presumption not applying in a case of an informal will, and had regard to other evidence before the Court that at the time of the informal will the maker of it was of sound mind, memory and understanding as to what she was doing.

113 In the case now before the Court, it seems to me appropriate to deal with the question of testamentary capacity once the question pertaining to whether or not the 'will' document is that of the deceased has been resolved. If the Court concludes the 'will' document is not that of the deceased, the question of capacity evaporates.

114 The primary question, then, that arises under s 34 of the Wills Act is whether the 'will' document that purports to embody the testamentary intentions of Jimmy Hudson is, in fact, his document; or to put that another way, whether Jimmy Hudson intended that document, without more, to constitute his will. If the Court is satisfied, on the balance of probabilities, that the deceased created the document and intended it to have testamentary effect, then it is the will of that person, notwithstanding that it has not been executed in accordance with s 8.

115 The plaintiff carries the burden of proof in adducing appropriate evidence to satisfy the Court about these things on the balance of probabilities.

116 Counsel for the plaintiff, in propounding the 'will' document as the valid will of the deceased, draws attention to the document itself, saying that it is the only document that has been found.

117 Counsel also says that the evidence shows that the deceased had exhibited an intention to make a will. In this regard, counsel for the plaintiff draws attention to the evidence of Ms Banaszak that she advised the deceased, on the one occasion she met him about another matter, that he should review his will. Counsel also draws attention to the evidence of Mr Shain who says, when he mentioned the question of a will to the deceased after the meeting with Ms Banaszak, that the deceased told him, 'It's all under control'. Finally, counsel refers to the evidence of the plaintiff who says that, not long before the deceased's death, she told him he ought to make a will, and he said to her, 'Don't worry Sele [sister]'.

118 In my view, none of the evidence just referred to supports a finding that the deceased intended to make a will. Ms Banaszak simply suggested that the deceased make a will. So far as the deceased's discussion with Mr Shain is concerned, the deceased's response that, 'It's all under control', is equivocal at best. The apparent advice of the deceased to his sister not to worry, when she told him to make a will, is also at best equivocal. It simply cannot be said with any confidence that this evidence from passing conversations discloses that the deceased intended to make a will at or around early February 2004. Advice given to a person that it is a good idea for them to make a will or review their will at relevant times, particularly if they are not well, does not translate into an intention on the part of the person to make a will.

119 Counsel for the plaintiff also refers to the evidence of David Oreski that the 'will' document was found behind the car seat cover in the rear of the deceased's car. Counsel submits that, having regard to the evidence that the deceased was very proud of his car, kept it in an immaculate condition and did not let others drive it, supports the view that the deceased considered the car to be a secure place in which a document would not be inadvertently found before his death. The suggestion is that this location of the document enables the Court properly to infer, on the balance of probabilities, that the document was that of the deceased and that by his conduct in keeping it in this place he intended it to have testamentary consequences.

120 In this case, the only evidence that the 'will' document was found where David Oreski says it was found, is that of David Oreski himself. No person was present with him when the discovery was made. His mother was informed by him about it. His father and brother Dennis were advised about the discovery later in the day. It is of passing interest that Dennis Oreski showed no particular interest in following up and seeing the place of discovery.

121 The evidence discloses that it was David Oreski and the plaintiff who pursued the issue of the validity of the 'will' document. David Oreski seems to have had most dealings with the plaintiff's solicitor and initiated the taking of advice in the matter of the deceased's estate.

122 This, then, takes one to the terms of the 'will' document itself and its apparent manner of preparation and presentation. As noted earlier, there is no dispute between the parties that the 'will' document was typed on an old-fashioned typewriter, not a modern computer and printer. I have already set out the reasons why that is evident.

123 It will be noticed that the 'will' document is all typed in upper case. It is well typed, with few grammatical errors. As noted earlier, there are some typing errors in that the letter 'E' has been overtyped by way of correction on some other incorrect letters.

124 One only has to peruse the 'will' document to appreciate it is a sophisticated document insofar as its legal drafting and content is concerned. It commences by stating, 'THIS IS THE WILL AND TESTAMENT OF ME JIMMY HUDSON ...'. From the evidence the Court has received concerning the experience of the deceased in legal matters, one would not automatically have thought that he would have been familiar with the expression 'the will and testament'.

125 In the second unnumbered paragraph of the will, the deceased purportedly appoints his sister 'TO BE THE EXECUTRIX OF THIS MY WILL'. The use of the word 'executrix' suggests that the creator of the document was quite familiar with this term of art. Where a woman is to perform these executory actions in relation to a will, she is referred to as the 'executrix', whereas a male person is referred to as an 'executor'. Again, from the evidence the Court has received, the deceased was not a person of whom one would have expected this degree of legal or grammatical discrimination.

126 Further, in that second unnumbered paragraph of the document, the draftsperson has provided for the deceased's sister's two sons to be 'THE JOINT EXECUTORS OF MY WILL', 'IN THE EVENT THAT MY SISTER PRE DECEASES ME'. Again, the discrimination between 'executor' ­ male person ­ and 'executrix' ­ female person ­ is evident in this drafting.

127 Moreover, the expression, 'IN THE EVENT THAT MY SISTER PRE DECEASES ME' is a sophisticated grammatical expression and one often used in the drafting of wills. I would be extremely surprised if the deceased, on the basis of the information the Court has received about him, would have had the knowledge, skill, education and training in drafting documents or wills, to express his intentions in this way.

128 Then follows the operative part of the 'will' document, which commences with the words: 'IN THIS MY WILL I GIVE:'. Then follow four numbered paragraphs in which the creator of the 'will' document deals with what is to happen to Jimmy Hudson's property and why. The drafting of this section of the 'will' document, with the prefatory words 'IN THIS MY WILL I GIVE:', shows quite some sophistication in the drafting of legal documents. Again, based on the evidence the Court has received about the experience and legal knowledge of the deceased, this shows incredible sophistication. The evidence, of course, shows that the deceased did not have a usual solicitor. Mr Shain took him along to Ms Banaszak. There is no evidence the deceased had any regular acquaintance with lawyers, let alone wills' draftspersons.

129 In cl 1 of the 'will' document there are further expressions which suggest sophisticated legal knowledge on the part of the person who drafted the document. The use of the word 'namely' in the first line is one. The reference to personal effects 'SITUATED AT 172 MOOLANDA BOULEVARD ...' is another. The use of the words 'situated at' is not common parlance and is one that lawyers are more likely to use than the non-legal draftsperson.

130 Clause 4 is of some further interest. It repeats the use of the expression 'situated at'. It also refers to the interest in the property at Two Rocks being 'SHARED IN FOUR EQUAL SHARES'. That expression is not necessarily a legal term of art. What is more interesting about cl 4 is that the deceased's son Vladimir Ikac is referred to before his older brother Bernard Ikac. Given the history of the relationship, which is the subject of evidence before the Court, there is no doubt that there was some disagreement between the deceased and Vladimir in Croatia on the last occasion that the deceased visited his family there. Mr Shain recounted what he recalls the deceased saying about Vladimir, and how there was a very serious argument. Bernard Ikac does not place that much store on that, but acknowledges there was some disagreement. Vladimir is also the younger of the two sons. It is surprising, in all of these circumstances, that if the deceased were to have drafted his own will himself, he would have mentioned Vladimir before Bernard.

131 Clause 5 of the 'will' document is also, in my view, of some considerable significance. In this provision, the creator of the document provides:

I TOTALLY EXCLUDE MY WIFE MARIJA IKAC FROM THIS MY WILL WHO HAS BEEN SEPARATED FROM ME FOR OVER FIFTEEN YEARS.

132 The inclusion of this clause in this document shows a sophisticated understanding of the law relating to wills and their capacity to be challenged. As David Oreski acknowledged when cross-examined by counsel for the defendants, he was at material times aware that the failure of a person making a will to make a disposition to someone such as their wife, without expressly explaining their exclusion from the will, may lead to a successful challenge of the will. The inclusion of an explanation for the exclusion of a person one would ordinarily expect to be a beneficiary may help to support the validity of the will. Having regard to the evidence the Court has received about the experience of the deceased in and his familiarity with legal matters, I find it surprising, to say the least, that Jimmy Hudson would have thought to include a provision such as cl 5 in any will that he drafted.

133 The 'will' document is concluded by the typed words 'JIMMY HUDSON 2 FEBRUARY 2004'. However, no attempt has been made by Jimmy Hudson, if he created this will, personally to sign it. The Wills Act by s 8 requires a person to sign in the presence of two witnesses, with a further requirement that the witnesses sign at the same time by way of witnessing the signature of the maker of the will. The 'will' document has not been witnessed. Nor has it been signed by the purported testator, Jimmy Hudson. If the deceased went to all of this trouble to make this document, or to have someone draft it on his instructions and then type it on an old-fashioned typewriter, I am surprised he would not have bothered at least to have signed it.

134 No evidence at all has been brought forward to suggest that some professional lawyer or other person was responsible for the creation of this 'will' document, reflecting the instructions of the deceased. No evidence of any standard will-making kit has been brought forward to the Court to show that a legally untrained person might have followed a will kit to produce such a sophisticated document. No evidence has been adduced in the proceedings to suggest that Jimmy Hudson was a person who regularly or even infrequently consulted lawyers of his own accord. The only occasion upon which the deceased seems to have consulted a lawyer was when Mr Shain took him along to see Ms Banaszak about the loan and security transaction involving his nephew, Jugo Ikac.

135 Counsel for the plaintiff suggests that, notwithstanding all of these observations, the Court should simply take the document as it finds it and accept that, because it was in the back of the Mercedes Benz vehicle, as claimed by David Oreski, the Court should accept that the deceased thereby adopted the document and intended, without more, that it should constitute his will and have testamentary effect.

136 Counsel also submits that the terms of the 'will' document are consistent with what one may have expected the deceased to have provided in his will, having regard to the relationship evidence adduced by the plaintiff.

137 The evidence, of course, does not end there. Following the plaintiff and her son, David Oreski, taking legal advice from Ms Banaszak, and the question of the creation of the 'will' document being raised, David Oreski obtained from his cousin, Jugo Ikac, the typewriter that he said the deceased often borrowed from Jugo and used. David Oreski was the person who told Ms Banaszak that the typewriter he had delivered to her office was the one used by the deceased in preparing the document. Subsequently of course, as later acknowledged by the plaintiff, expert advice was obtained that that typewriter had not been used in the typing of the 'will' document.

138 The appreciation of the plaintiff and those assisting her, such as her son David Oreski, that it would be important to be able to adduce evidence that the deceased had, for example, drafted the document himself, no doubt led to the acquisition of the typewriter and the instructions that it was regularly used by the deceased and was used in the preparation of the document. However, that all came unstuck in the face of expert advice.

139 Thus the Court is left in the position on the evidence that there are absolutely no suggestions made by the plaintiff as to how the 'will' document was drafted or created. The Court does not know who drafted it or typed it. However, the Court does not accept that the deceased was responsible for the drafting or terminology of the 'will' document, given its sophistication. If the deceased were responsible for its typing on an old-fashioned typewriter, then it is clear that the typewriter that David Oreski believed had been used to draft the document was not the typewriter. It is also clear from the plaintiff's own evidence that the old-fashioned typewriter found in the deceased's house after his death at the first clean­up, which was thrown into the skip bin and disposed of, could not possibly have been the typewriter that was used, because the wires on it were broken.

140 As to the terms of the will, it is not possible to say that the deceased, on all the evidence, was bound to make a will in terms of the 'will' document. While there is evidence to show that in the late 1980s or early 1990s he became frustrated with his son Vladimir and his Croatian family, he continued to have a fairly good relationship with his son Bernard. He had been prepared to assist his wife in necessary ways to enable her to acquire the apartment in Croatia.

141 The Court, then, is left with a sophisticated purported will, which in the opinion of the Court could not possibly have been drafted by the deceased, for which there is no explanation as to its physical creation put forward by the plaintiff.

142 In the end, the only piece of evidence that can reasonably support the proposition that the deceased adopted this 'will' document as his own and intended it to be his last will, is that of David Oreski, who says he found this document behind the car seat cover in the back seat of the deceased's Mercedes Benz.

143 However, in light of the facts that the document is a legally sophisticated document in its terms and expression which the Court considers was not drafted by the deceased, that it has been typed on an old-fashioned typewriter which has not been identified in evidence, and has not been signed by the deceased, the Court is far from satisfied that the document David Oreski claims to have found in the deceased's motor vehicle was either created by the deceased or on his instructions, or was intended by the deceased, without more, to operate as his will.

144 In these circumstances, the plaintiff has failed to discharge the evidentiary burden that she carries of satisfying the Court, on the balance of probabilities, that the 'will' document was the deceased's and that he intended it to be his will.

145 The Court, then, is not satisfied that the 'will' document should be found to be valid under s 34 of the Wills Act.

146 For the reasons set out above, the Court is not satisfied that the purported will of Jimmy Hudson, bearing date 2 February 2004, which was not signed by him and not witnessed as required by s 8 of the Wills Act, is a valid will.

147 It follows, on the evidence the Court has received, that the defendants are entitled to the order they seek in their counterclaim, namely that letters of administration of the estate of the deceased be granted.

148 In the circumstances, the Court considers that letters of administration be granted to the second defendant. The second defendant, in effect, has represented his mother and brother, the first and third defendants respectively, in the proceedings. He is also a person who is familiar with the English language and is currently within the jurisdiction of Western Australia. It is convenient and appropriate that letters of administration be granted to him.

149 For these reasons, the plaintiff's claim should be dismissed and the defendants are entitled to an order that letters of administration be granted to the second defendant.

150 I will now hear the counsel for the parties as to the terms of the final judgment and orders that need to be made in these proceedings.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ORESKI -v- IKAC [2007] WASC 195 (S)

Costs - Wills - Probate - Action for proof in solemn form of informal will - General rule as to costs - Exceptions in probate proceedings - Unsuccessful plaintiff to bear own costs

Supreme Court Act 1935 (WA), s 37

Wills Act 1970 (WA), s 8

Defendants' costs to be taxed to be paid out of estate of deceased

1 The plaintiff sought proof in solemn form of a document purporting to be the will of Jimmy Hudson (the deceased). The Court was not satisfied that the deceased intended the 'will' document to constitute the will of the deceased: Oreski v Ikac [2007] WASC 195. The plaintiff then made a claim for her costs to be paid out of the deceased's estate.

2 The general rule that costs follow the event also prevails in probate matters, unless the unsuccessful party can establish one of two exceptions:

1. Where the testator or a residual beneficiary is the cause of the litigation, the costs of all parties may be paid out of the estate.
2. Where it is reasonable to propound or challenge the purported will, the losing party may be relieved of the burden of costs.

3 Having regard to the particular circumstances of this case, the Court ordered that the defendants were entitled to have their costs to be taxed paid out of the estate of the deceased, but that the plaintiff should bear her own costs of the action.

4 The plaintiff sought proof in solemn form of a document purporting to be the will of Jimmy Hudson (the deceased). The Court was not satisfied that the deceased intended the 'will' document to constitute the will of the deceased: Oreski v Ikac. The plaintiff then made a claim for her costs ­ as well as those of the defendants ­ to be paid out of the deceased's estate. The defendants submitted the proper approach in a case such as this is that costs should follow the event and so the plaintiff personally should be ordered to pay the defendants' costs to be taxed.

Discretion as to costs ­ general rule and exceptions in probate matters

5 The Court has a general discretion as to costs: s 37, Supreme Court Act 1935 (WA). Some guidance on the exercise of this discretion is provided by the statement in O 66 r 1 of the Rules of the Supreme Court 1971 (WA) that costs generally follow the event.

6 However, courts have long recognised the special considerations surrounding probate matters. To this end, Sir JP Wilde noted in Mitchell v Gard (1863) 164 ER 1280, 1281 - 1282:

It is of high public importance that doubtful wills should not pass easily into proof by reason of the cost of opposing them. It is of equal importance that parties should not be tempted into a fruitless litigation by the knowledge that their costs will be defrayed by others.

7 As well as setting out these public policy considerations, which remain apposite today, the court stated the two exceptions to the rule that costs follow the event in probate matters, 1281:

[F]irst, if the cause of litigation takes its origin in the fault of the testator or those interested in the residue, the costs may properly be paid out of the estate; secondly, if there be sufficient and reasonable ground, looking to the knowledge and means of knowledge of the opposing party, to question either the execution of the will or the capacity of the testator, or to put forward a charge of undue influence or fraud, the losing party may properly be relieved from the costs of his successful opponent.

8 These principles have been approved and applied in Western Australia: see for example Re Green (dec'd); Lloyd v Green [1969] WAR 67, 83; Roebuck v Smoje [2001] WASC 95 [29]; and Paraskov v Paraskos [2002] WASC 109 [67].

9 The first exception ­ 'Was the testator or a residual beneficiary at fault?' ­ grew out of the recognition of the need for certainty. The early development of this exception related to testators who left multiple contradictory wills and thus caused the need for an application to the court for certainty. The 'fault' of the testator has now been more closely defined as including situations where the conduct, habits and mode of life of the testator give grounds to question the purported will: Perpetual Trustee Co Ltd v Baker [1999] NSWCA 244 [14].

10 As to the second exception ­ 'Did the circumstances reasonably lead to an investigation of the "will" document?' ­ where the circumstances in which the purported will was created or came to light reasonably lead to the unsuccessful party propounding or challenging the purported will, that is, causing the court to investigate the purported will, costs may be left where they are incurred: Shorten v Shorten [2001] NSWSC 363 [8]; Szabo v Battye (No 2) [2006] NSWSC 1392 [11]; and Argo v Whittaker [2007] WASC 131 [30].

11 It is clear that exceptional circumstances do not need to be established before the court can apply one of the exceptions, rather than the general rule: Re Herbert Brothers (dec'd) [1990] NTSC 26; (1990) 101 FLR 279, 304 - 305 (Kearney J). Rather, an unsuccessful propounder or challenger of a will need only establish an 'adequate reason for an order of a different character': Twist v Tye [1902] P 92, 94; approved in Clay v Karlson [2001] WASC 141 [158].

12 The first question for the court is therefore whether there is an 'adequate reason', given the facts and the unsuccessful party's knowledge of them, to depart from the general rule that costs follow the event: Twist v Tye, 94.

13 Due to the subjectivity of the test, no clear rules seem to have evolved from the many cases on point. Further, the large degree of overlap between the two exceptions has complicated the question. The most that can be said is that the exceptions, just like the general rule, provide a starting point for analysis and then the court is able to exercise its discretion as to costs in order to do justice between the parties.

Was the testator or a residual beneficiary at fault?

14 In the seminal case of Mitchell v Gard, a solicitor who drafted the will of the testator was also a residual beneficiary and received the bulk of the estate. The court noted that the misconduct of the solicitor in drafting a will of which he was the primary beneficiary gave the next of kin a reasonable ground for challenging the will. Although the solicitor was able to prove the will was that of the testator and was not the product of undue influence, the court awarded the challengers their costs out of the estate.

15 Nock v Austin [1918] HCA 73; (1918) 25 CLR 519 also involved a beneficiary solicitor who was involved in the drafting of the will in question. Here, although the solicitor succeeded in establishing that the will was that of the testator and not marred by undue influence, the solicitor had to pay the other parties' costs out of his share of the estate.

16 In Re Herbert Brothers, the court dealt with two wills made by two brothers, each of whom left their significant property to their personal adviser. The personal adviser had been closely involved in the preparation of both wills, though he had suggested to the brothers that they not involve him in the process. The court found that the personal adviser had dispelled the extremely suspicious circumstances, but ordered that the costs of both parties be paid out of the estate.

17 Intriguingly, in Re Cutcliffe's Estate; Le Duc v Veness [1959] P 6, it was found that the testator had misled the unsuccessful parties and inspired false hopes as to his testamentary intentions. The court declined to apply the exception, holding that such conduct did not make the litigation the 'fault' of the testator. Instead, the court followed the general rule.

18 In Perpetual Trustee v Baker, the testatrix was 94 years old when she made a sixth and final will which left her estate to a charity and made no provision for her only relatives, who she wrongly believed were misusing money she provided to them. The court found that it was reasonable to investigate the testator's testamentary capacity at the time of making the final will in the light of her circumstances, and so ordered that the costs of both parties be paid out of the estate. This case highlights the overlap between this exception and the 'reasonable grounds for investigation' exception.

19 In Roebuck v Smoje, the testator made a second will while aged and infirm, in slightly suspicious circumstances, and did not make proper arrangements for its safekeeping: [47] ­ [49]. In that situation, Hasluck J found that the defendants were justified in doubting whether the will was properly executed and in litigating the matter. The court ordered that, even though the defendants 'lost', the proper order for costs included an order that the costs of the defendants be paid out of the estate.

20 Similarly, in Reichelt v Reichelt [2007] WASC 79, Hasluck J awarded both parties their costs from the estate in circumstances which raised doubts about the testator's testamentary capacity and where the defendant beneficiaries under the previous will did not contest the application.

21 Further, in Public Trustee v Whitworth [2007] WASC 170, the court was presented with two informal wills. The defendants did not contest the hearing, but submitted to the court's decision. In that situation, where the confusion was effectively created by the testator, all parties obtained their costs from the estate.

22 There are no grounds to establish 'fault' on the part of a residual beneficiary, or that such a person was the cause of the litigation.

23 Likewise, it cannot be concluded on the evidence that the deceased's habits or mode of life caused the litigation. The claimed discovery of the will document in the motor vehicle of the deceased by the plaintiff's son, David Oreski, was the primary basis of the plaintiff's claim that the document was intended by the deceased to be his will and have testamentary effect. For the reasons given in the main judgment, I am not satisfied that that is so. I did not, however, make any express findings as to who prepared or caused the preparation or typing of the document so found. But I was not satisfied that the deceased had done so. Nor did I make any express findings concerning the claim of David Oreski that he did indeed find the 'will' document in the deceased's motor vehicle. In light of the competing factual circumstances set out in the main judgment I was simply not satisfied that the 'will' document presented to the Court was that of the deceased or that he intended it to have testamentary effect.

24 These circumstances suggest that it was at least reasonable for the plaintiff to commence proceedings to clarify the status of the document that her son David said that he had found in the deceased's motor vehicle. Again, I made no findings, especially given the lack of evidence on the point, to the effect that the plaintiff did not believe that her son David found the 'will' document in the deceased's motor vehicle or the plaintiff did not believe the document to be the deceased's or that he intended it to be his will.

25 In my view, however, there was a point prior to the action going to trial when the plaintiff should have considered whether the action could properly be maintained. This was when her solicitors obtained advice from an expert witness that the typewriter that David Oreski had positively told the solicitors had been used by the deceased to type the 'will' document, was not the typewriter on which the document had been typed.

26 At that point, the only evidence the plaintiff could rely on in propounding the validity of the informal 'will' document, was David Oreski's claim that he had found the document in the deceased's motor vehicle. In the light of the expert witness's advice, the provenance of the 'will' document must have been seriously in doubt.

27 The issue of testamentary capacity was not directly raised at trial, though the defendants put the plaintiff to proof on this issue, as on all other aspects concerning the 'will' document. Although Mr Vinko Shain, the deceased's accountant and friend, stated that the deceased made references to a mysterious 'Boss' and international business deals, it is not clear whether the deceased actually believed that he was working for such a figure, or whether he mentioned the 'Boss' to inflate the importance of his business activities. Certainly the latter fits in with the acknowledged secretive behaviour of the deceased. In any event, it cannot be said that the question of the deceased's testamentary capacity caused the litigation.

28 The only conduct of the deceased which could support a claim that he had in fact made a will are the ambiguous statements he made to Mr Shain and the plaintiff, in the context of those persons specifically inquiring about his will: Oreski v Ikac [66], [72]. Although the conversation with Mr Shain occurred before the date of the 'will' document and the deceased apparently told Mr Shain that he would prepare a will, there is nothing other than the 'will' document to indicate that he followed through on that intention.

29 Even if these ambiguous statements can be construed as suggesting the deceased had drafted a will, Re Cutcliffe's Estate suggests that such conduct cannot cause litigation, without more. The 'will' document should not be seen as 'more' given its questionable provenance.

30 In these circumstances I am not satisfied that it can properly be said that the first exception to the general rule on costs should apply. That then leaves the second exception to which I have already begun to give some consideration, as to whether the circumstances reasonably led to an investigation of the status of the 'will' document.

31 In Szabo v Battye, the plaintiff's case was not frivolous and the plaintiff's conduct of the matter did not unduly lengthen the case, so costs were left to lie where they were incurred, save that the successful defendants were awarded indemnity costs out of the estate.

32 Shorten v Shorten raised the problem of testamentary capacity. The trial judge acknowledged that at the beginning of the case, there were doubts about the testator's testamentary capacity, and rather reluctantly made no costs order against the unsuccessful party. This decision was upheld on appeal.

33 Argo v Whittaker addressed the will of an elderly lady whose testamentary capacity was called into question by the defendants. By the time the matter reached trial, the parties had reached agreement and the action proceeded undefended. In that situation, Johnson J ordered that the successful plaintiff take her costs from the estate and that the defendants bear their own costs.

34 In Burnside v Mulgrew; Re Estate of Grabrovaz [2007] NSWSC 550 an elderly lady was befriended by the defendant in the last few months of her life. A purported executed will leaving the testatrix's property to the defendant was discovered after the testatrix's death, but one of the attesting witnesses denied that the purported will had been duly executed. The court was not satisfied that the signature was that of the testatrix. Though the court doubted the provenance of the purported will and the veracity of the defendant's evidence, the court did not find that the defendant positively knew that the purported will was a forgery, and therefore declined to award costs against the defendant. Rather, the successful plaintiff's costs were paid out of the estate on an indemnity basis and the defendant had to bear her own costs.

35 In Becker v Public Trustee of New South Wales [2006] NSWSC 1146 Nicholas J held that 'reasonableness' of the relevant party's conduct involves consideration of what is needed to discharge the onus of proving the claim according to the Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 standard: [16].

36 In Re Estate of Grounds; Page v Sedawie [2005] NSWSC 1311, the testatrix made seven wills between 1985 and 1999, and died in 2001 aged 92. After exchanging affidavits, including expert evidence regarding testamentary capacity, the parties involved agreed that the 1991 will should be proved, on the basis that she did not have testamentary capacity at the time of the other wills. The court ordered that the costs of both parties be paid from the estate, as it was reasonable to maintain the litigation to the stage they did; namely, until such time as it became clear that she did not have testamentary capacity from 1997 on.

37 The question in this case is whether the plaintiff was justified in commencing and maintaining at all relevant times the action propounding the validity of the 'will' document. As noted above, I consider it was reasonable for the plaintiff to have commenced proceedings to clarify the status of the document her son David claimed to have found in the deceased's motor vehicle. I find this was so even though there was no signature to lend an air of authority to the 'will' document ­ and even though the plaintiff had or should have had knowledge to hand ­ from her sons ­ suggesting that the deceased was unlikely himself to have typed the document as he lacked the typing ability and familiarity with technical legal language.

38 The plaintiff, through her son David who was the person dealing with the plaintiff's solicitors, plainly became aware that it would or might be important to explain how the 'will' document came to be prepared or typed. It was at this point that the plaintiff's son David delivered a typewriter to the office of the plaintiff's solicitors and positively advised the solicitors that that typewriter had been used by the deceased to type the 'will' document. On the evidence before the Court there were no 'ifs or buts' about this. David Oreski informed the solicitors that the typewriter was the typewriter in question. The plaintiff's solicitors put that precise proposition to the defendant's solicitors in early 2006 and asked the defendants to agree the fact.

39 The plaintiff's action thereafter proceeded on the important basis that the plaintiff could now establish that the 'will' document was prepared on a particular typewriter that the deceased had access to and used himself. In fact the plaintiff led no such evidence at the trial and this information only came to light through cross-examination of the plaintiff's witnesses. At least from the time of the receipt of the expert report stating that the typewriter provided by David Oreski was not that used to type the 'will' document ­ whenever that was ­ the plaintiff possessed as much knowledge as the Court about the relevance of the typewriter to the case ­ that is, none. A principal plank in the plaintiff's case fell away. In my view, in light of that expert advice, whatever the perceived strengths of the plaintiff's case were to her ­ or her son David ­ prior thereto, after that event it was wholly unreasonable for the plaintiff to continue to litigate the matter.

40 The situation here cannot be compared to cases where the unsuccessful parties 'saw the error of their ways' and settled the matter. Rather, the plaintiff was not justified in maintaining the action from this point on.

41 In these circumstances, the question is whether the plaintiff should be ordered to pay the costs of the proceedings, or simply be relieved from the burden of paying the defendant's costs, so that she bears her own costs, with the defendants being entitled to take their taxed costs from the estate.

42 Twist v Tye is the major case governing the application of the general rule. Here, three executors and residuary legatees acted in their professional capacities for an elderly lady for some years before her death. During this time, they had ample opportunity to observe her circumstances and condition, and knew that they were acting for her as she required their assistance. While they were acting for her, she executed a will. The will was then challenged on the grounds that she did not have testamentary capacity and did not know and approve of the contents of the will. The executors supported the will unsuccessfully. The court denied them their costs from the estate and ordered that costs follow the event, making a number of firm statements on the executors' participation in the action, 96, 98:

[T]hey really were in a position to know, or practically ought to have known, the true position of affairs as disclosed in the course of this inquiry; and that, having that knowledge, they propounded the will with the great risk of being defeated in view of all the circumstances of the case...

[It] cannot be contended that they were led into the belief that this old lady was capable of managing her own affairs and of making these wills. The truth is, as I said before, they took a view and acted upon it; and when it came to a fight between themselves, on the one side, and the persons interested under an intestacy, on the other side, they stood to win one way and to lose the other. I see, therefore, nothing to warrant a departure from the ordinary rule.

43 Throughout the hearing in Clay v Karlson, the unsuccessful plaintiff maintained that he was merely putting the defendants to proof of the will. Justice Roberts­Smith found that he was, in effect, conducting an attack on the grounds of undue influence: [182]. Given this subterfuge and the plaintiff's conduct of the hearing, Roberts­Smith J ordered that costs should follow the event.

44 A less dramatic situation was that found in Paraskov v Paraskos. The court determined that it was initially reasonable to require the will to be proved, but for the defendant to persist with the challenge to the will after seeing the witness statements of the plaintiff was unreasonable. In this case, costs followed the event.

45 The present circumstances of the plaintiff are in my view a little different from those in Twist v Tye and Clay v Karlson. As noted above, the Court has not made any express findings concerning the plaintiff's state of knowledge in this case. Rather, what the Court has found is that it was reasonable for the plaintiff to commence the proceedings to clarify the testamentary status of the document her son David claims he found in the deceased's motor vehicle. However, there was a point at which the plaintiff was not justified in maintaining the proceedings. This was when the plaintiff's solicitors obtained expert advice that the typewriter David Oreski said had been used by the deceased to type the document was not in fact the typewriter. At that point the only evidence to support the plaintiff's case was the claim of her son David that he had found the document in the motor vehicle. In my view, at that point, the plaintiff's claim to say the least was tenuous. I do not think it was reasonable for the investigation as to the status of the document to continue at that point.

46 In all of the circumstances, I do not consider that this is a case where neither of the exceptions to the general rule as to costs should apply. Rather, I think that it was reasonable, for a period prior to the trial, for the plaintiff to cause the investigation to be made. However, I do not think it should have been maintained beyond the point that the expert advice was received. In all of these circumstances I consider the second exception should apply, to the extent that the plaintiff should not have her costs of the proceedings paid out of the estate of the deceased, but should bear her own costs.

47 The defendants, of course, are entitled to an order that their costs be paid out of the estate, as they were successful in defending their position.

48 For these reasons, the appropriate order as to costs in relation to this action, in my view, is that the defendants are entitled to have their costs to be taxed paid out of the estate, but that the plaintiff should bear her own costs.

1. The costs of the defendants are to be taxed and paid out of the estate of the deceased.
2. The plaintiff is to bear her own costs of the action.

The parties may now proceed to extract formal costs orders in these terms.