HUGHES -v- GRIERSON [2026] WASC 56 (3 March 2026)

1. The action was successfully mediated and the parties (including the second defendant) entered into Binding Heads of Agreement to resolve the action. The Binding Heads of Agreement assume that the May Will is to be admitted to Probate instead of the September Will.[11]
2. It is in this context that on 5 November 2025, Registrar Davies made orders under the Rules of the Supreme Court 1971 (WA) (Rules of the Supreme Court) Order 43 rule 16 with the parties' consent that the first defendant's counterclaim be tried on an uncontested and undefended basis with evidence by affidavit.
3. It is also in this context that the plaintiff seeks the court's leave to withdraw her Statement of Claim and discontinue her action to prove the September Will.[12]
4. The counterclaim is to be determined on the papers unless otherwise ordered. Having reviewed the papers, I am satisfied that it is appropriate for the counterclaim to be determined on the papers.

1. The following affidavits have been filed and are in evidence:

(a) The plaintiff's affidavit sworn 26 June 2024 (Hughes affidavit), annexing a statement of assets and liabilities as at the date of the deceased's death and the date of the affidavit.

(b) The affidavit of Mr Blatchford sworn 6 November 2025 (Blatchford affidavit), confirming his consent to be appointed as administrator of the deceased's estate and deposing to his suitability for appointment and his capacity to perform the administrator's duties if appointed.

(c) The Grierson affidavit which deposes to a range of matters, including the decline in the deceased's health from approximately 2017 and the medications he was receiving at the time he executed the September Will. The Grierson affidavit also attaches a report from Dr Poh Kooi Loh, a Clinical Pharmacologist, Geriatrician and Medical Administrator. Dr Loh gives opinion evidence on the possible effects of the deceased's medications, medical condition and age on his testamentary capacity in September 2023.[13]

(d) The Grierson scripts affidavit, annexing the May Will, the September Will and two earlier wills executed by the deceased in 2002 and 2022. The first defendant deposes in this affidavit that she is not aware of any other script of the deceased.[14]

(e) The plaintiff's affidavit of scripts sworn 12 November 2025, attaching the May Will, the September Will and the will executed by the deceased in 2022. The plaintiff deposes in this affidavit that she is not aware of the 2002 will or any other testamentary disposition or instrument made by the deceased.[15]

(f) The affidavit of Diana Anna Williams sworn 20 January 2026 (Williams affidavit), one of the attesting witnesses to the May Will.

1. There is no conflict of evidence in the affidavits and I accept the evidence set out in each affidavit.[16] On the basis of that evidence, I make the findings of fact recorded in paragraphs 1 to 4 above and the following additional findings of fact.[17]
2. The deceased was born on 25 August 1928 and died on 27 September 2023 at the age of 95 years,[18] leaving no surviving spouse or children.[19]
3. The deceased's wife Yvonne Charlesworth died in December 2016[20] and his son died in December 2022.[21]
4. The deceased executed a will on each of 10 April 2002 (the 2002 Will), 13 December 2022 (the 2022 Will), 4 May 2023 and 17 September 2023. Each of those wills expressly revoked all wills previously made by the deceased.[22]
5. Both the May Will and the September Will appointed the Public Trustee of Western Australia (the Public Trustee) as the deceased's executor.[23]
6. The Public Trustee has expressly renounced all its right and title to the Probate and Execution of both the May Will and the September Will.[24] I am satisfied that this renunciation is effective.[25]
7. Mr Blatchford is an appropriate person to be appointed as administrator of the deceased's estate and has capacity to attend to the due and proper administration of the estate and to give effect to the terms of the May Will and the Binding Heads of Agreement[26] (assuming the May Will is the deceased's last will).
8. The 2022 Will had provided for the first defendant to be the sole beneficiary of the deceased's estate.[27]
9. The May Will and the September Will are materially to the same effect, with the following exceptions:[28]

(a) the May Will provided for the plaintiff and the first defendant to have equal shares in the deceased's furniture, furnishings and articles of domestic or household use or ornament and his articles of personal use or adornment (other than motor vehicles, which were given solely to the plaintiff), while the September Will gave them all solely to the plaintiff;

(b) the May Will provided for the plaintiff and the first defendant to have equal shares in his property in Alexander Heights,[29] while the September Will provided for the plaintiff alone to have that property; and

(c) the May Will provided for the residue of the deceased's estate[30] to be given to the plaintiff, the first defendant and the second defendant in equal shares, while the September Will provided for the first defendant to receive $20,000 and the plaintiff and the second defendant to have equal shares in the rest of the monies held in the deceased's bank account.

1. The May Will was prepared by the Public Trustee on the deceased's instructions and was witnessed by a solicitor and an officer of the Public Trustee, including Ms Williams.[31]
2. The September Will was prepared by the plaintiff's de facto partner, who also witnessed the September Will together with the second defendant's husband.[32]
3. The deceased's health began to decline from approximately 2017, soon after the death of his wife. As his health deteriorated, the deceased became more dependent on others for his care.[33]

1. On 13 June 2023 the deceased was the subject of an Aged Care Assessment Team (ACAT) review following a referral by his general practitioner. The first defendant was present at the ACAT review.[34]
2. The review took place eight weeks after the deceased had been diagnosed with mouth cancer. It follows that the deceased was diagnosed with mouth cancer in mid-April 2023.
3. His cancer was being treated with monthly radiotherapy directed to his head and close to his brain. Before he died, the deceased received 12 doses of radiation over three rounds, which caused his face to swell and ulcers in his mouth.[35]
4. At the time of the review, the deceased reported no concerns with his memory, but no cognitive and memory assessment was performed at the time.[36]
5. Also at the time of the review:

(a) the deceased experienced chronic pain, breathlessness and fatigue which affected his walking and ability to attend to tasks;

(b) the deceased's medical conditions included osteoarthritis, ischaemic heart disease, asthma, type 2 diabetes, hypertension, spinal stenosis, myocardial infarction, osteoporosis, chronic obstructive pulmonary disease, heart block, depression, neuropathic pain, dermatitis, reflux and vertigo; and

(c) the deceased had a permanent pacemaker.[37]

1. The deceased took regular oral analgesia, including Schedule 8 analgesia.[38] He also took mirtazapine, simvastatin, candesartan, amiodarone, tapentadol and Systane to treat his various medical conditions and continued to do so until his death.[39]
2. The deceased was admitted to Joondalup Hospital on 22 or 23 September 2023 and died there.[40] In the three days before he died, the deceased was in a lot of pain and appeared to be on strong pain medication.[41]
3. It is possible that any one or more of the following factors could have significantly altered the deceased's cognition or mental state and interfered with his capacity to make considered and rational decisions at the time he executed the September Will:

(a) his medications (and in particular the antidepressant mirtazapine, which can cause drowsiness, and the narcotic analgesic tapentadol which can lead to hallucinations and confusion);

(b) his radiotherapy, which was directed close to his brain and could have caused cognitive problems;

(c) the acute intervening medical illness which led to his being hospitalised, which may have caused an acute confused state;

(c) his depression.[42]

1. Given the deceased's advanced age, cancer, radiotherapy and medical conditions, the effect of the medications on him would have been more pronounced.[43]
2. For the reasons set out below [48] - [56], the deceased had testamentary capacity to make the May Will.
3. For the reasons set out below [57] - [60], there is a well-grounded suspicion that the September Will did not express the mind of the deceased.

The plaintiff's application to discontinue her action

1. The plaintiff seeks the court's leave under the Rules of the Supreme Court Order 73 rule 18(2) to withdraw her Statement of Claim and discontinue her action to prove the September Will (discontinuance application).[44]
2. Order 73 rule 18(2) of the Rules of the Supreme Court provides:

Where at any stage of the proceedings in a probate action the plaintiff or any party who has entered an appearance therein applies by summons for an order for discontinuance of the action, the Court may so order on such terms as to costs and otherwise as it thinks just and may further order that a grant of probate of the will or letters of administration of the estate of the deceased person, which is the subject of the action be made to the person entitled thereto.

1. The plaintiff and the first defendant are content for me to determine this application on the papers and propose the following orders:

(a) The plaintiff have leave to discontinue her action for Letters of Administration of the Will of Alexander Dunbar Charlesworth executed on 17 September 2023.

(b) There be no order as to costs in relation to the plaintiff's application.

1. I am satisfied that it is appropriate for me to determine the plaintiff's discontinuance application on the papers. I am also satisfied that it is appropriate for me to make orders of that kind, having regard to:

(a) the agreement of the plaintiff and the first defendant on how the discontinuance application should be determined;

(b) the Binding Heads of Agreement; and

(c) the evidence before the court and my findings of fact.

1. The first defendant seeks a grant in solemn form with the May Will annexed of letters of administration in favour of Mr Blatchford.
2. It is appropriate that the grant be sought in solemn form given that the validity of the September Will is contested, even in the context of a compromise under which the plaintiff discontinues her action to prove the September Will.[45]
3. E M Heenan J explained what is required for a grant in solemn form in Wheatley [24] (with citations omitted):

[F]or there to be a grant in solemn form the court must be satisfied on evidence adduced by the party propounding the will, or by any other party to that suit, whether joined or cited, of the formal validity of the will, on such evidence as the propounder decides to adduce that the testator had the capacity to make a will at that time... In this regard the propounder may take advantage of the rule that a will, properly executed is, in the absence of evidence to the contrary, presumed to have been made by a person competent and understanding. If there is evidence to the contrary it is for the propounder to establish affirmatively that the testator was of sound mind... Nevertheless, there must be proof at least to this extent on the civil standard to justify a grant in solemn form.

[W]hen 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.

1. It is therefore necessary to begin by considering whether the May Will was properly executed.

1. Section 8 of the Wills Act provides[46] that a will is not valid unless:

(a) it is in writing; and

(b) it is signed by the testator or signed in the testator's name by some other person in the testator's presence and by the testator's 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 the testator's will; and

(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.

1. The May Will appears on its face to comply with each of these requirements. However, in the ordinary course, evidence of one of the attesting witnesses to the May Will should be adduced to prove due execution of the May Will.[47] That evidence has been adduced by way of the Williams affidavit.
2. On the basis of the May Will and the Williams affidavit, I am satisfied that the May Will was properly executed.

Did the deceased have testamentary capacity to make the May Will?

1. The first defendant can only take advantage of the presumption that the deceased had testamentary capacity to make the May Will in the absence of evidence to the contrary.
2. While no party suggests that the deceased lacked testamentary capacity when he made the May Will and the first defendant's counterclaim is unopposed, I must be independently satisfied on the evidence that the May Will is the deceased's last will.[48] For that reason, I have considered whether there is any evidence which contradicts the presumption that the deceased had testamentary capacity when he made the May Will.
3. Some of the evidence on which the first defendant relies to contend that the deceased lacked testamentary capacity to make the September Will is also relevant to whether he had capacity to make the May Will. For example, the deceased was taking a number of medications at the time of his ACAT review in June 2023 which Dr Loh considers may have affected his testamentary capacity in September 2023.
4. However, that evidence needs to be understood in its broader context. The effect of Dr Loh's evidence is that there were a number of factors which could have affected the deceased's testamentary capacity. The cumulative effect of those factors placed the deceased's capacity in question by September 2023. Some of those factors either were not present in May 2023 or had only recently become a factor.
5. Dr Loh does not opine that the deceased's testamentary capacity was in question in May 2023 and I accept that, on the facts, the evidence before the court does not amount to evidence which contradicts the presumption that the deceased had capacity when he made the May Will.
6. I also give weight to the fact that the May Will was prepared by the Public Trustee and witnessed by an officer and a solicitor of the Public Trustee. Neither of them appear to have been qualified to form an expert opinion on the deceased's capacity. However, they may be expected to have satisfied themselves that the deceased had testamentary capacity before preparing and witnessing the execution of the May Will.
7. Further, while the ACAT review did not involve any cognitive or memory assessment, the report of that review does not disclose any concern going to the deceased's testamentary capacity. The ACAT review took place some six weeks after the deceased made the May Will.
8. The fact that the parties have consented through the Binding Heads of Agreement to how the deceased estate should be administered is also a relevant consideration for the court to weigh in the overall balance of considerations.[49]
9. In all the circumstances, I am satisfied that the deceased had testamentary capacity to make the May Will.

1. In Brown v Willoughby,[50] E M Heenan J accepted as a correct statement of the law a passage from Theobald on Wills (16th ed, 2001) which included the following:

If a will was prepared and executed under circumstances which raise a well-grounded suspicion that the will ... did not express the mind of the testator, the will ... is not admissible to probate unless that suspicion is removed by affirmative proof of the testator's knowledge and approval ... A classic instance of suspicious circumstances is where the will was prepared by a person who takes a substantial benefit under it...

However circumstances can only raise a suspicion of want of knowledge and approval if they are 'circumstances attending, or at least relevant to, the preparation and execution of the will itself'.

1. In this case, the September Will was prepared by the plaintiff's de facto partner and witnessed by him and the second defendant's husband. Those are circumstances attending, or at least relevant to, the preparation and execution of the September Will. Both the plaintiff and the second defendant stood to take a substantial benefit under the September Will.[51] These circumstances give rise to a well-grounded suspicion of the kind to which his Honour referred in Brown v Willoughby.
2. Further, the evidence led by the first defendant and, in particular, the doubt which Dr Loh's opinion casts on the deceased's testamentary capacity to make the September Will provide a further basis for that well-grounded suspicion.
3. It is neither necessary nor appropriate for me to do more than find that there is a well-grounded suspicion that the September Will did not express the mind of the deceased. These reasons should not be understood as expressing any criticism of or making any adverse finding against anyone.
4. Notice has been given to all parties interested in the September Will. The plaintiff no longer wishes to propound the September Will and no one else has come forward to do so. In those circumstances and in light of the well-founded suspicion that I have found to exist, I should ignore the September Will.[52]

Disposition The plaintiff and the first defendant propose orders by consent

1. On 29 January and 9 February 2026, the plaintiff and the first defendant filed minutes of orders to which they would consent if, respectively, I granted the plaintiff's discontinuance application and I found for the first defendant in her counterclaim. As I have noted, the second defendant has given notice that she will accept any order of the court.
2. In light of my reasons and the findings I have made, I am prepared to make those orders, with some amendments that I explain below.

1. The orders I propose to make (the proposed orders) are as follows:
   1. It is pronounced that the will and testament of Alexander Dunbar Charlesworth dated 4 May 2023 is valid and has force as the last will of the late Alexander Dunbar Charlesworth.
   2. Subject to compliance with order 3, a Registrar is to issue a grant of letters of administration, with the will of Alexander Dunbar Charlesworth dated 4 May 2023 annexed in solemn form to Ian Torrington Blatchford of Unit 1, 14-16 Irwin Street, Perth in the State of Western Australia with the terms of the grant to be settled by the Registrar.
   3. A Registrar is not to issue a grant under order 2 unless Ian Torrington Blatchford has first brought into the Registry with a copy of these orders the original will and testament of Alexander Dunbar Charlesworth dated 4 May 2023 and filed in this proceeding (CIV 1311 of 2024) an affidavit deposing that he will administer the estate of Alexander Dunbar Charlesworth according to law.
   4. Each party bear their own costs of the proceedings incurred in the period prior to 19 August 2025.
   5. Subject to order 8, the plaintiff and the first defendant are entitled to an indemnity out of the Estate in respect of all costs incurred by them of or incidental to Supreme Court Action CIV 1311 of 2024 from and including the date of 19 August 2025 (including the costs of any taxation).
   6. The costs in order 5 are to be taxed (if not agreed) on the basis that the plaintiff and the first defendant are entitled to all of the costs claimed from 19 August 2025, except in so far as they have been unreasonably incurred or are of an unreasonable amount, so that subject to those exceptions the plaintiff and the first defendant are completely indemnified for their costs.
   7. The plaintiff have leave to discontinue her action for Letters of Administration of the Will of Alexander Dunbar Charlesworth executed on 17 September 2023.
   8. There be no order as to costs in relation to the plaintiff's application for leave to discontinue her action.
2. The proposed orders which differ from those proposed by the parties are proposed orders 1, 2, 3, 5, 6 and 8.
3. Proposed orders 1, 5, 6 and 8 may be explained briefly:

(a) Order 1 has been amended to specify that the May Will is the deceased's last will.

(b) Order 5 has been amended to make it clear that the plaintiff's indemnity does not extend to any costs related to her discontinuance application.

(c) Order 6 has been amended to recognise the possibility that the costs may be agreed.

(d) Order 8 has been amended to clearly identify the application the subject of order 8 (and thereby clearly limit the qualification to order 5).

1. Proposed orders 2 and 3 have been amended to recognise that the court does not have a designated 'Probate Registrar' and (in the case of order 2) to specify that Mr Blatchford is in Perth. Further, proposed order 3 makes the issue of the grant subject to Mr Blatchford first taking the steps specified in that proposed order.

1. By 4.00 pm on 10 March 2026, the plaintiff and the first defendant either:

(a) file and serve any submissions on which they wish to rely in response to the proposed orders, including whether they wish to be heard orally on the proposed orders; or
>
> (b) inform my Associate that they are content for the proposed orders to be made without being heard further.

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

[1] Affidavit of Fiona Grierson sworn 6 November 2025 (Grierson affidavit) [5].

[2] Statement of Claim filed 2 April 2024 [2]; Amended Defence and Counterclaim filed 3 December 2025 [1].

[5] Affidavit of Scripts of Fiona Grierson sworn 6 November 2025 (Grierson scripts affidavit) [2.1.3] and page 8 (clause 7).

[6] Notice of Intention to Abide by Decision filed by the second defendant on 13 November 2025.

[7] Statement of Claim, prayer for relief. A copy of the September Will is annexed to the Grierson Scripts Affidavit as Annexure D and referred to in paragraph 2 of that affidavit.

[9] More precisely, the first defendant seeks an order that 'the Probate Registrar' issue the grant. The court does not have a designated 'Probate Registrar'. If the order is to be made, it is appropriately directed to a Registrar.

[10] Amended Defence, prayer for relief.

[11] Grierson affidavit [24] and Annexure FG-6 clause 1.

[12] Plaintiff's submissions filed 22 December 2025 [14]; chamber summons filed 23 January 2026.

[13] Grierson affidavit [19] and Annexure FG-5.

[15] Affidavit of scripts of Jill Hughes sworn 12 November 2025 (Hughes script affidavit) [2].

[16] While there is no affidavit from Dr Loh, the plaintiff has not objected to Dr Loh's report being admitted into evidence as part of the Grierson affidavit, despite having had the opportunity to do so in her submissions filed 22 December 2025. As I have noted, the first defendant's counterclaim is being tried on an uncontested and undefended basis.

[17] For the sake of narrative clarity, where appropriate I repeat the findings of fact recorded in paragraphs 1 to 4 of my reasons in the findings of fact set out from paragraph 14 below. In repeating some of the findings in paragraphs 1 to 4 in the later narrative, I do not intend to alter those findings in any way.

[18] Grierson affidavit [5], [10] - [11] and Annexure FG-1.

[19] Statement of Claim [2]; Amended Defence [1]. See also the deceased's Will executed on 10 April 2002, in which he refers only to his wife and one child. At that time the deceased was 73 years old. The ACAT report of June 2023 also refers to the deceased only having one child: Grierson affidavit [10] - [11] and Annexure FG-1.

[20] Grierson affidavit [9]; Grierson scripts affidavit [2.1.1] and Annexure A (where Ms Charlesworth's name is given in clause 3).

[23] Grierson scripts affidavit [2.1.3] - [2.1.4], Annexure C clause 2 and Annexure D clause 2.

[24] Grierson affidavit [26] and Annexure FG-7.

[25] Administration Act 1903 (WA) section 32; Scarpuzza v Scarpuzza [2011] WASC 65 [45] - [46] (E M Heenan J).

[27] Grierson scripts affidavit [2.1.2], Annexure B clause 5.

[28] See Grierson scripts affidavit [2.1.3] - [2.1.4] and Annexures C and D.

[29] The deceased's property in Alexander Heights was estimated to be worth $500,000 at the time of his death: Hughes affidavit [1] and Attachment JAH-1.

[30] The residue of the deceased's estate comprised monies in his bank account, which stood at $108,105.48 at the time of his death: Hughes affidavit [2] and Attachment JAH-2.

[31] Grierson scripts affidavit [2.1.3] and Annexure C; Grierson affidavit [12].

[34] Grierson affidavit [10] and Annexure FG-1.

[35] Grierson affidavit [10] - [11] and [19] and Annexures FG-1 and FG-5.

[36] Grierson affidavit [10] - [11] and Annexure FG-1.

[37] Grierson affidavit [10] - [11] and Annexure FG-1.

[38] Grierson affidavit [10] - [11] and Annexure FG-1.

[39] Grierson affidavit [16] - [18] and Annexure FG-4.

[40] Grierson affidavit [19] and Annexure FG-5.

[41] Grierson affidavit [19] and Annexure FG-5.

[42] Grierson affidavit [19] and Annexure FG-5.

[43] Grierson affidavit [19] and Annexure FG-5.

[44] Plaintiff's submissions filed 22 December 2025 [14]. The plaintiff initially sought leave under the Rules of the Supreme Court Order 23. However, Order 23 does not apply to a probate action: see Rules of the Supreme Court Order 73 rule 18(1). For the definition of "probate action", see Order 73 rule 1(2).

[45] Wheatley v Edgar [2003] WASC 118 (Wheatley) [17], [28] - [29] (E M Heenan J).

[46] The provisions of section 8 are subject to other Wills Act provisions that are irrelevant to this case.

[47] Vandeleur v French [1991] 1 Qd R 481, 484 - 485 (Macrossan CJ), cited in Wheatley [25] (and see also [30]).

[48] Mott v Hill [2021] WASC 43 [45].

[49] Fairclough v Cvitan [2019] WASC 370 [26] (Kenneth Martin J).

[50] Brown v Willoughby [2012] WASC 20 [91] (E M Heenan J).

[51] See in this regard the Statement of Assets and Liabilities annexed as JAH-1 to the Hughes affidavit and the differences between the bequests under the May Will and the September Will.

[52] In the estate of the late Leo Rene Raig [2006] ACTSC 96 [34] (Harper M); Brown v Willoughby [92] - [96] (E M Heenan J).