LITTLEFAIR -v- BERNHARD [2026] WASC 136 (17 April 2026)

1. The 2024 will was duly executed before two witnesses, Mr Peter Lewis Jones and Mr Rohan Garnett Howard. Each of Mr Jones and Mr Howard provided sworn affidavit evidence as to the due execution and attestation of the will on 20 September 2024.
2. In addition, Mr Howard swore a supplementary affidavit on 1 April 2026. His evidence was that he has been a financial planner for 27 years. He visited Ms Foley at her home on 18 September 2024, where he sat with Ms Foley at the kitchen table to discuss and receive instructions for the preparation of her will. Mr Howard's evidence was that he had completed over 1,000 sets of instructions at the time. Mr Howard explained that he went through a long series of questions with Ms Foley. Ms Foley answered all the questions without hesitation. She was clear on how she wished to distribute her estate and what she wanted to do.
3. On the basis of his experience and his discussion with Ms Foley, Mr Howard formed the view that Ms Foley was mentally quite lucid, although obviously not well and somewhat immobile. Mr Howard was satisfied that Ms Foley had the capacity to provide instructions in relation to her will.
4. On 20 September 2024, Mr Howard returned to Ms Foley's home with Mr Jones for the execution of the will. He confirmed that Ms Foley had read the draft will, understood it, and considered it. Mr Howard and Mr Jones went through the will and confirmed that it complied with her instructions. Ms Foley explained to Mr Howard and Mr Jones why she wished Brett to be the beneficiary of her estate. Mr Howard was of the view that at the time Ms Foley was, again, physically infirm, but that her mental capacity was sound. Mr Howard said there was no indication of confusion or lack of understanding, or that the document did not reflect Ms Foley's wishes. The will was executed and witnessed on that occasion.
5. There was no evidence before the court to challenge the evidence of Mr Howard or Mr Jones.

1. The relevant legal framework and principles were set out in Wheatley v Edgar,[1] and a summary of relevant principles was referred to in Moscufo v Moscufo [No 2].[2]
2. The principles include, relevantly, the following:

(1) 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;

(2) For solemn form to be decreed, sufficient evidence to satisfy the minimum requirements for validity must be adduced. That will require, at least, proof of due execution;

(3) The propounder of the will 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 competent and understanding person;

(4) A presumption of due execution arises where a will, regular on its face, bears the signature of a testator and two witnesses; and

(5) Three presumptions then arise from due execution: testamentary intention, testamentary capacity, and knowledge and approval of the contents of the will.

1. Applying the unchallenged evidence to the legal principles, I am satisfied that the 2024 will was duly and properly executed. I am satisfied that at the relevant time, Ms Foley had the requisite intention and capacity to make the 2024 will, and that she approved of its contents.

1. The force and validity of the 2024 will be pronounced in solemn form, and a grant of probate in solemn form will be issued to the plaintiff.

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

[1] Wheatley v Edgar [2002] WASC 118.

[2] Moscufo v Moscufo [No 2] [2025] WASC 112.