ALLEN -v- QUINN [2025] WASC 2 (23 December 2024)

1. The probate of a will may be granted in common form or in solemn form. There is a significant difference between the two. A grant of probate in common form is revocable. On the other hand, the circumstances in which a grant in solemn form may be revoked are limited.[1]
2. The proof required to obtain a grant in solemn form differs to that required for a grant in common form. That difference still applies where a compromise has been reached. In this respect, E M Heenan J stated in Wheatley v Edgar:[2]

... when a compromise is reached between the parties to a contested action for proof in solemn form, it is open to the court to decree in favour of the will either in common form or in solemn form but, for solemn form to be decreed sufficient evidence to satisfy the minimum requirements for validity must be adduced and that this will require, at least, proof of due execution. This is entirely consistent with the other cases so far examined. There is also the significant observation that, whether or not there should be a decree in solemn form by the court in the event of a compromise will also depend on the circumstances of the particular case.

It is in this context that the provisions of RSC O 73, r18 and the acknowledged power for a court to grant probate in the event of a discontinuance, come to be examined. Clearly enough the rule recognises the power of the court to make a grant in the event of the discontinuance of part or all of an action for proof in solemn form, whether of the will propounded by the plaintiff or of some other will propounded on a counterclaim. However, whether the grant which might then be made should be a grant in solemn form or in common form would seem to depend on the circumstances of the individual case and, in particular, whom the grounds alleged for challenging the validity of the will propounded, the availability of evidence sufficient to prove due execution and at least raise a presumption of testamentary capacity in the absence of evidence to the contrary.

1. In Estate Kouvakis; Lucas v Konakas,[3] Lindsay J made the following observations:

... if all interested parties appear before the Court or are demonstrated to have been given sufficient notice of the proceedings to be bound by any determination of the Court, the Court may have greater latitude than otherwise would be the case on an assessment of the evidence upon which a determination about a testator's testamentary intentions, if any, is to be made.

In the interests of the due administration of justice the Court may acquiesce in a procedural process in which selective notice is taken of some, and not other, evidence in order to accommodate an application for a solemn form grant in which all adversarial interests acquiesce. It is because of this possibility that the essential character of a solemn form grant cannot, for all purposes, be defined by reference to an evidentiary standard alone.

The Court reserves a right to act expediently in the interests of the administration of justice: eg, Palin v Ponting [1930] P 185 at 188, applying Gornall v Mason [1887] UKLawRpPro 18; (1887) 12 PD 142. It does not, and it is not required to, apply in every case a rigorous requirement, for a grant in solemn form, that it have no notice, in fact, of evidence casting doubt on the validity of an instrument propounded as the deceased's last will. Where it is proper and reasonable to do so, it can, in the interests of justice and the due administration of an estate, proceed on the basis of a formal notation of evidence tending to prove the validity of an instrument, allowing parties to discount other lines of inquiry.

1. In order to establish that proof of the will should be pronounced in solemn form, it is necessary for the propounding party to establish due execution of the will. It is also necessary to establish that the deceased had testamentary capacity to make the will at the time of execution, knew and approved of the contents of the will and intended that the document they executed was to be their will.[4] These requirements are often described by the summary terms, due execution, testamentary capacity, knowledge and approval and testamentary intention.
2. Relevantly to this case, due execution is established if the will is signed by the deceased in the presence of two witnesses present at the same time, who then sign the will attesting that the deceased signed it in their presence. That attestation needs to occur in the deceased's presence.[5]
3. It is sufficient for the purposes of this case to observe that the applicable test as to testamentary capacity has been summarised as follows:[6]

Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realise the extent in character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner.

1. In making this assessment, regard is had to the dispositions made by the will and the extent to which the will provides for those persons who were the objects of the deceased's affection during their life.
2. In respect of the question of age, in Scattini v Matters, Muir J said:[7]

Great age is a factor which will normally suggest the exercise of particular vigilance when considering testamentary incapacity (Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558.) It does not follow, however, that even a marked decline in a testator's intellectual capacity through advancing age establishes lack of testamentary capacity.

1. Knowledge and approval of the contents of a will is the traditional language used to convey that the will represents the testamentary intentions of the deceased. Testamentary capacity, and knowledge and approval, are distinct concepts. Testamentary capacity is a necessary, but not sufficient, condition for the establishment of knowledge and approval.[8]
2. Testamentary intention is that the deceased intended the document they executed was to be their will. I expect it would be a rather unusual circumstance where testamentary capacity and knowledge and approval were established, but testamentary intention was not. However, the circumstances as a whole still need to be looked at in assessing whether testamentary intention is established.
3. There are a number of presumptions that can ordinarily be availed of in cases seeking to prove a will. A presumption of due execution arises where a will regular on its face bears the signatures of a testator and two witnesses.[9] Where a will has been duly executed, three presumptions arise: testamentary intention, testamentary capacity and knowledge and approval of the contents of the will.[10] These presumptions may however be displaced.
4. Mr Holmes was involved in the preparation of the 2020 will, facilitated its execution and is the substantial beneficiary under its terms. His counsel quite rightly accepts that this raises a suspicion that must be allayed for there to be a grant in solemn form.[11] Given that concession, I think it is preferable not to resort to the application of presumptions.
5. For the reasons which follow, I am satisfied that the 2020 will was duly executed. I am also satisfied that Ms Grigg had testamentary capacity at the time she executed the 2020 will, that Ms Grigg knew and approved of the contents of the 2020 will and Ms Grigg intended that the document that she executed was to be her will.
6. I turn now to the issues which I must determine.

1. In respect of the execution of the 2020 will, I am satisfied and find that the evidence demonstrates as follows:
   1. Ms Grigg attended on Dr Bediako at the Rockingham Medical Practice on 12 June 2020 for a medical consultation. Dr Bediako had been Ms Grigg's doctor for about 13 years. A registered nurse, Ms Jacklyn Paul, was also present.
   2. At that time, Ms Grigg was still living at her home. Mr Holmes took Ms Grigg to the appointment.
   3. At the conclusion of the medical assessment, Mr Holmes handed to Dr Bediako the unsigned version of the 2020 will. Mr Holmes had handwritten out the 2020 will as directed by Ms Grigg.
   4. Dr Bediako asked Ms Grigg if she had read the will and she said she had. Dr Bediako read out to Ms Grigg what was written in the will. Dr Bediako asked Ms Grigg what her connection was with each of the beneficiaries, and she correctly explained that connection.
   5. Ms Grigg said words to the effect that she agreed to the dispositions provided for by the 2020 will.
   6. Ms Grigg signed the 2020 will in the presence of Dr Bediako and Ms Paul.
   7. After Ms Grigg had signed the will, Dr Bediako and Ms Paul witnessed Ms Grigg's signature in her presence.
2. Having regard to these matters, I am satisfied that the 2020 will was duly executed.

1. I am also satisfied that Ms Grigg had testamentary capacity at the time that she executed the will. In particular, I am satisfied of the following matters on the evidence.
2. In a letter dated 30 January 2019 from Dr Voloshyn, the Geriatrics Registrar of the Rockingham Hospital, to Dr Bediako, Dr Voloshyn set out his observations after having reviewed Ms Grigg. The letter reflects that Ms Grigg was able to converse well with Dr Voloshyn. The letter indicated that Ms Grigg lived independently with fortnightly cleaning services provided by the Silver Chain organisation. The summary conclusion to the letter was that Ms Grigg had a mild cognitive impairment. The letter states that it was reviewed by Dr Antony, another Geriatrician. I take this to mean that Dr Antony agreed with the medical conclusions set out in the letter.
3. The evidence before the court includes substantial medical records for the period up to when Ms Grigg executed the 2020 will, which do not suggest that her condition worsened beyond that of mild cognitive impairment.
4. Ms Grigg lived independently until August 2019, when because of problems with her knee, she started to receive assistance with showering and dressing. Ms Grigg was still living at home when she executed the 2020 will.
5. Dr McManus was Ms Grigg's general medical practitioner for the period 1982 to 1992. They became friends. Dr McManus last saw Ms Grigg in May 2019 at Ms Grigg's home. Dr McManus observed that Ms Grigg was of very sound mind, still living safely on her own in her own house and taking care of her cats, birds and garden. Dr McManus also described that Ms Grigg was good company and that Ms Grigg's sense of humour was sharp as ever. Dr McManus also witnessed an enduring power of attorney made by Ms Grigg on 27 April 2019. Dr McManus would not have done so if she had found Ms Grigg was not of sound mind.
6. Dr Bediako was of the following opinions regarding Ms Grigg at the time she executed the 2020 will. Ms Grigg did not appear confused or under any pressure, her mind was free to act in a natural, regular and ordinary manner and Ms Grigg was cognitively able, and competent to make her own decisions.
7. These matters taken together demonstrate that at the time Ms Grigg executed the 2020 will, she lived an engaged and mostly independent life. They also demonstrate that her mild cognitive decline assessed in January 2019 had not materially worsened by the time she executed the 2020 will. Moreover, Dr Bediako was of the opinion that Ms Grigg was cognitively able, and competent to make her own decisions at the time she executed the 2020 will.
8. Dr Bediako's opinion carries significant weight for two reasons. First, Dr Bediako was Ms Grigg's treating doctor for about 13 years and was aware of the assessment of mild cognitive decline made by Dr Voloshyn. Second, I am satisfied Dr Bediako would not have witnessed the 2020 will if he held any concerns regarding Ms Grigg's cognitive capacity to understood that will, and to make the decisions reflected in it. Accordingly, I am satisfied that Ms Grigg had testamentary capacity at the time she executed the 2020 will.
9. I turn now to the questions of knowledge and approval and testamentary intention.

1. It is useful to start by explaining the provisions of the 2020 will.
2. The 2020 will revoked all wills and other documents of testamentary intent previously made by Ms Grigg.
3. The 2020 will provided for the following bequests:
   1. The payment of $50,000 to each of the plaintiffs, and to the ninth defendant.
   2. The payment of $10,000 to the Rockingham Golf Club.
   3. The payment of $1,000 to Ms Val Mitchell.
   4. Ms Grigg's properties at 14 ‑ 16 Kent Street Rockingham and 139 Esplanade Rockingham were given to Mr Holmes.
   5. Ms Grigg's jewellery was given to Mr Holmes' daughter, Hannah.
   6. Ms Grigg's motor vehicle and the sum of $250 were given to Ms Grigg's brother Thomas.
   7. Ms Grigg's shares in a number of companies were given to Mr Holmes' wife, Judith Holmes.
   8. The remaining money in Ms Grigg's bank accounts after payment of her expenses was to be paid to Mr Holmes.
4. At the time of Ms Grigg's death, her estate had a net worth of approximately $2.7 million, of which the properties in Rockingham had a combined approximate value of $2 million. Mr Holmes is therefore a substantial beneficiary under the 2020 will. However, as I will now explain, that was understandable and rational.
5. The evidence demonstrates and I accept that:
   1. Mr Holmes is now 70 years of age. He first met Ms Grigg in about 1986, when he was about 32 years of age and Ms Grigg was about 58 years of age. By that point in time, Mr Grigg had passed away and Ms Grigg was then living with Mr Derek Forester.
   2. Mr Holmes developed a close friendship with Ms Grigg and Mr Forester.
   3. In September 2003, Mr Forester made a will appointing Mr Holmes as the executor. Mr Forester passed away on 29 September 2003.
   4. After Mr Forester passed away, Mr Holmes regularly visited Ms Grigg on an almost daily basis, took her to medical appointments and visited her when she was in hospital. After Ms Grigg had a hip operation in 2015, Mr Holmes spent a considerable amount of time helping Ms Grigg by doing chores in the house and in the garden.
   5. Also, Mr Holmes lived next door to Ms Grigg from about 2006 to 2016.
   6. In about 2016 or 2017, Mr Holmes witnessed Ms Grigg tearing up her 2014 will, however he was not instrumental in her doing so.
   7. At the time that Ms Grigg made the 2020 will, Mr Holmes had known Ms Grigg for approximately 34 years.
   8. By then, Mr Holmes had provided substantial care to Ms Grigg and she regarded Mr Holmes as a trusted and close friend who she often affectionately described as her son.
   9. In respect of Ms Grigg's siblings, Alvin Lister, Boden Lister and Eunice Allen lived in the Eastern States of Australia, as did their children. Thomas lived in Western Australia. It is not apparent from the evidence before me that Thomas or his children had any significant interactions with Ms Grigg in the later years of her life.
   10. The plaintiffs would come to Western Australia and visit Ms Grigg on occasion.
   11. On Mr Holmes' observations, Ms Grigg did not have any significant interactions with the ninth defendant. No evidence has been brought to my attention that suggests otherwise.
6. Having regard to these circumstances, I am satisfied the 2020 will was a rational will.
7. I have already found that Ms Grigg had testamentary capacity. That is a necessary precondition to the establishment of knowledge and approval. As I explained earlier, Mr Holmes wrote out the 2020 will at Ms Grigg's direction. The enquiries that Dr Bediako made prior to Ms Grigg's execution of the 2020 will, and her responses to those enquiries, demonstrate that Ms Grigg knew and approved of the contents of the 2020 will at the time she executed it. I am satisfied from these matters that Ms Grigg knew and approved of the contents of the 2020 will at the time she executed it, and that she intended that document was to be her will.

1. In conclusion then, I am satisfied that the 2020 will was duly executed by Ms Grigg. I am also satisfied that Ms Grigg had testamentary capacity at the time she executed the 2020 will, that she knew and approved of the contents of the 2020 will and she intended that document to be her will.
2. Accordingly, I am satisfied that it is appropriate to make the orders sought by Mr Holmes. Upon my making an order that the force and effect of the 2020 will be pronounced in solemn form, Mr Holmes will formally renounce his right to seek probate of the 2020 will and I will be provided with Mr Haynes' consent to be the administrator of that will.
3. Section 36 of the Administration Act 1903 (WA) provides:

Where a person dies leaving a will but without having appointed an executor, or leaving a will and having appointed an executor who is not willing and competent to take probate or is resident out of Western Australia, the Court may appoint an administrator of the estate of the deceased, or of any part thereof, and such administration may be limited as the Court thinks fit.

1. The purpose of the provision is to facilitate the due administration of the relevant estate. That being so, the discretion arises where the named executor is unwilling, or is incompetent, or both. Given that Mr Holmes has renounced probate of the 2020 will, the preconditions to the exercise of the discretion afforded by s 36 of the Administration Act are met. In relation to the exercise of the discretion itself, the plaintiffs and Mr Holmes agree that Mr Haynes should be the administrator. They are the substantial beneficiaries. Mr Haynes is currently the administrator pendente lite. In those overall circumstances, I am satisfied it is appropriate that Mr Haynes be the administrator of Ms Grigg's estate.

1. The plaintiffs seek an order that the estate pay their costs of the action and the counterclaim on an indemnity basis subject to those costs being reasonable and properly incurred.[12] Mr Holmes seeks the same costs order for the period from 2 July 2024 onwards.
2. Mr Holmes also seeks an order that the estate pay his costs up to and including the date of mediation held on 1 July 2024, fixed in the sum of $240,000. That amount is agreed to by the plaintiffs.
3. The plaintiffs agree that the costs the subject of the proposed costs orders are to be paid out of the plaintiff's entitlements to Ms Grigg's estate, as those entitlements are varied by the July 2024 agreement. Thus, the other beneficiaries to the 2020 will are not affected by the proposed costs orders.
4. The plaintiffs and Mr Holmes were the persons seeking to propound the competing wills. In that circumstance, and having regard to the plaintiffs' agreement that the costs are to be paid from their entitlements, in my view it is appropriate to make the costs orders sought.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Wheatley v Edgar [2003] WASC 118 [18].

[2] Wheatley v Edgar [2003] WASC 118 [26] - [27].

[3] Estate Kouvakis - Lucas v Konakas [2014] NSWSC 786 [251], [262] - [263].

[4] Fisher v Kay [2010] WASCA 160 (Fisher v Kay) [82].

[5] Wills Act 1970 (WA), s 8. This is not the only manner in which due execution can be established under s 8.

[6] In the Will of Wilson [1898] VicLawRp 39; (1897) 23 VLR 197, 199 per Hood J. See also Timbury v Coffee [1941] HCA 22 (1941) 66 CLR 277 , 283 per Dixon J.

[7]Scattini v Matters [2004] QSC 459 [96]. See also Seeley v Back [2005] NSWSC 68 [20], Donato v Mangravite, Estate of Donato [2005] NSWSC 488 [30].

[8] Veall v Veall [2015] VSCA 60 [173] per Santamaria JA, with whom Beach and Kyrou JJA agreed.

[11] Plaintiff by counterclaim's written submissions at trial, par 4.

[12] As to the form of order, see Gwenythe Muriel Lathwell as Executrix of the Estate of Gilbert Thorley Lathwell (Dec) v Lathwell [2008] WASCA 256 (S).