PEREIRA -v- PEREIRA [2025] WASC 138 (22 April 2025)

(a) an Affidavit of Scripts of Jose Gomes Pereira sworn 20 June 2023;

(b) an Affidavit of Jose Gomes Pereira sworn on 18 December 2024; and

(c) an Affidavit of Biao Hu sworn on 8 April 2025.

1. Mr Jose Pereira is the first named plaintiff and one of the executors appointed under the terms of the 2017 Will.
2. Mr Hu is a solicitor employed by the plaintiffs' solicitors.
3. The evidence given by Mr Jose Pereira and Mr Hu was uncontested. On the basis of that evidence, I make the factual findings in paragraphs [15] to [33] below.

1. The Deceased married Ms Maria Da Encarnacao Gomes on 27 November 1944. She passed away on 18 June 2009.
2. The Deceased had 10 children. Six of those children remain living:

(a) Ms Maria Estela Gomes Pereira Jasmins, the second named plaintiff and the other executor appointed under the terms of the 2017 Will;

(b) Ms Maria Lidia Gomes Pereira, the third defendant;

(c) Mr Joao Da Paixao Pereira, the fourth defendant;

(d) Mr Jose Gomes Pereira;

(e) Mr Ines Gomes Pereira Da Silva, the ninth defendant; and

(f) Mr Adriano Gregorio Gomes Pereira, the tenth defendant.

1. Three of those children passed away before the Deceased and were survived by their own children:

(a) Mr Joao Bonifacio Gomes Pereira, who died on 7 December 1996 and was survived by:

(i) Mr Allan Pereira, the first named first defendant;

(ii) Mr Nelson Pereira, the second named first defendant;

(iii) Mr Ken Pereira, the third named first defendant;

(iv) Ms Anita Pereira, the fourth named first defendant; and

(v) Ms Dalila Pereira, the fifth named first defendant;

(b) Ms Maria Nazare Gomes Pereira Da Conceicao, who died on 20 November 2021 and is survived by:

(i) Ms Lynette Pereira Fabio, the first named fifth defendant; and

(ii) Ms Rose Pereira Da Conceicao, the second named fifth defendant; and

(c) Mr Gabriel Gomes Pereira, who died on 13 May 1995 and is survived by:

(i) Ms Natalie Michelle Ballard, the first named seventh defendant;

(ii) Ms Gabriel Gregory Pereira, the second named seventh defendant; and

(iii) Mr David Anthony Pereira, the third named seventh defendant.

1. One of the Deceased's children, Mr Antonio Jose Gomes Pereira, passed away on 22 September 2022, after the Deceased and was survived by two of his children:

(a) Mr Mathew John Pereira; and

(b) Mr James Jose Pereira.

1. Without intending any disrespect, I will refer to the Deceased's children by their first names.
2. As I have mentioned, in the 2000 Will, the Deceased left his property to his wife (who was then still alive) and if she passed away before him, to his then eight surviving children. No provision was made for the families of the two children of the Deceased, who by then had passed away: Joao (Bonifacio Gomes Pereira) and Gabriel. No executed copy of the 2000 Will has been produced and the Deceased's middle name is recorded incorrectly.
3. In 2017, Jose and the Deceased had a discussion about making a new will. This was prompted by the discovery that the Deceased's name had been recorded incorrectly in the 2000 Will.
4. When Jose and the Deceased reviewed the 2000 Will, Jose asked the Deceased why the will had not made any provision for the families of Joao and Gabriel and the Deceased told him that he did not know why and the will should have included all 10 children. The Deceased also told Jose that the person who had drafted the will was told to ensure that all 10 families were included and he did not know why this was not done and did not know why his name was incorrect.
5. In June 2017, the Deceased told Jose that he intended to draft a new will to include all of his children and the families of his predeceased children.
6. Jose recalls the Deceased and his wife often saying that in the event of their deaths all 10 children should receive an equal share of their estate.
7. On 18 July 2017, the Deceased asked Jose to take him to see his doctor, Dr Enzo Almonte to have him witness a statutory declaration. That evening, the Deceased asked Jose to draft a new will for him to include all 10 children and if any passed away, that their children would inherit what their parent would have otherwise inherited.
8. Once Jose had drafted the will, the Deceased asked him to read it to him which Jose did and the Deceased confirmed that the contents of the will were what he wanted.
9. The Deceased then asked Jose to make an appointment for him at the Portuguese Consulate so that someone could witness the new will. Jose made an appointment for him on 22 August 2017 and took the Deceased to that appointment.
10. One of the witnesses asked the Deceased if he knew what he was signing and he said 'yes, it is my will'. He was also asked why he was changing his will and he said that he was concerned that his old will would not be valid as his name was incorrect and he wanted to ensure that all of his estate matters were sorted out prior to his death.
11. The Deceased signed the will in the presence of two witnesses who also signed the will. The Deceased signature was limited to writing the letter "A" and he did not sign the fourth page of the will. The witnesses only signed at the end of the will.
12. In late August 2017, the Deceased told Jose that he was relieved that the 2017 Will had been prepared because he was concerned about his name in the 2000 Will being wrong and that that will had not provided for all his children and their families.
13. The Deceased kept the 2017 Will in a safe box.
14. In late 2019, the Deceased moved to a nursing home.
15. At some point around or after this time, Jose and his siblings helped the Deceased clean up his home in White Gum Valley, ready for sale. Jose saw the 2017 Will at this time but has not seen the 2017 Will or safe box since.
16. The Deceased did not tell Jose, or anyone else to Jose's knowledge, that he wanted to revoke the 2017 Will.
17. Jose believes that the 2017 Will may have been lost during the clean up of the Deceased's house.
18. Jose would be a beneficiary under both the 2000 Will and the 2017 Will but his share of the estate would be reduced under the 2017 Will.

1. The plaintiffs seek orders pronouncing the force and validity of the 2017 Will and the issue and grant of probate in solemn form in their favour.
2. Wills are proved in solemn form in a probate action where the sole question for the determination of the court is whether a will is, or is not, valid as a testamentary instrument. Wills can also be proved in common form where the will's validity is not contested. A grant in common form is revokable but a grant in solemn form is irrevocable (subject to some limited exceptions).[1]
3. Before a court may make a grant of probate in solemn form, the court must first be satisfied by evidence of the formal validity of the will and that the testator had the capacity to make a will at that time.[2]
4. In the absence of evidence to the contrary, the plaintiff is entitled to the presumption that the testator knew the contents and effect of the will and that it was made by a person of competent understanding.[3]
5. Even where a matter has been settled and parties agree to abide by a decision of the court without contest, the court must still be independently satisfied by evidence to the requisite standard in order to grant probate in solemn form. The fact that the parties consent to how an estate should be administered is still a relevant consideration.[4]

1. Before these proceedings settled, the ninth and tenth defendants maintained that the 2017 Will was irregular because the Deceased and the witnesses did not sign each and every page of the 2017 Will.[5]
2. In their original form, the wills statutes in Australia were modelled on the English statute that required the testator to sign the will 'at the foot or end thereof'. This requirement has now been removed in England and in all Australian jurisdictions, however.[6]
3. While it is sometimes said that wills should be signed and witnessed on every page (and this may be a prudent practice for a number of reasons) it is not a formal requirement of the Wills Act 1970 (WA) (Wills Act). The formal requirements for the execution of a will are set out in s 8 of the Wills Act. That section provides that:
   1. Execution generally

Subject to sections 17 and 20 and Parts XA, X and XI, 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. In the Law of Succession,[7] Professor Dal Pont has observed that it is evident that it is no longer necessary for a testator to sign a will 'at the foot or end thereof' in Western Australia because the only requirement is that set out in s 8(b) of the Wills Act.
2. The requirement that the testator sign the will has been construed broadly and it is sufficient if the testator has placed some mark on the will intending that it be his or her signature. The test is whether what has been written by the testator was written by him as an authentication of what precedes in the will.[8]
3. I am satisfied that the 2017 Will was executed in accordance with s 8 of the Wills Act and was therefore regularly executed.
4. The evidence before me does not directly address whether the Deceased routinely signed documents by writing the letter "A", although it does include a statutory declaration signed by him in the same manner. In any event, I am satisfied on the evidence before me that he signed the 2017 Will in this manner and it is apparent from that signature that he intended to give effect to the will.
5. The evidence establishes that one of the reasons that the 2017 Will was drafted was to alter the beneficiaries under the will to include the families of any of the Deceased's children who predeceased him. The Deceased signed the third page of the 2017 Will which provided for this.
6. The evidence does not suggest any particular reason why the fourth page of the 2017 Will was not signed. On the evidence before me, it seems more likely than not that this was an oversight.
7. The medical evidence that I discuss below mentions limitations regarding the Deceased literacy. The evidence establishes to my satisfaction, however, that the entire will was read out to the Deceased after it was drafted.

Whether the Deceased lacked testamentary capacity

1. As I have found that the 2017 Will was regularly executed, in the absence of evidence to the contrary, the plaintiff is entitled to the presumption that the will was made by a person of competent understanding.
2. There is no evidence before me which suggests that the Deceased was not a person of competent understanding. The available evidence suggests that he was.
3. Jose has said that the Deceased was in good health at the time of making and executing the 2017 Will.
4. Further, the plaintiffs have adduced into evidence a medical report from the Deceased's doctor, Dr Almonte, confirming that the Deceased had cognitive capacity around the time he executed the 2017 Will.
5. In a report dated 25 June 2023, Dr Almonte said that the Deceased attended his rooms with Jose on 18 July 2017. Dr Almonte gives Jose's surname as 'Concalves' but it seems likely that he was referring to Mr Jose Gomes Pereira. Jose says that it was him who attended this appointment.
6. Dr Almonte said that Jose told him that the Deceased's will was being updated, the Deceased indicated that he was aware of this and the Deceased indicated that he had 10 children.
7. Further, Dr Almonte said that the Deceased attended him with his family for a health assessment on 24 October 2017 and that that assessment was finalised on a review in his rooms with Maria (the second defendant) on 27 November 2017.
8. Dr Almonte said that on a Mini Mental State Examination the Deceased scored 26/28, noting limitations with literacy and language skills. He said that the Deceased scored 2 on the geriatric depression scale and he understood and responded to his questions. He expressed the opinion that the Deceased had cognitive capacity.
9. Dr Almonte said that on December 2018 the Deceased was admitted to hospital. He said that the Deceased was discharged home to continue living alone and no concerns were raised about his cognitive capacity or function.
10. I am satisfied on the basis of both the presumption and Dr Almonte's uncontested evidence that the Deceased had the testamentary capacity to execute the 2017 Will.

Whether the Deceased intended to revoke his will

1. The original 2017 Will has been lost but a copy is available.
2. In Cahill v Rhodes,[9] Campbell J explained that the test for admitting a lost will was as follows:

First, it must be established that there actually was a Will, or a document purporting to embody the testamentary intentions of a deceased person; second, it must be shown that that document revoked all previous Wills, third, the presumption that when a Will is not produced it has been destroyed must be overcome, fourth, there must be evidence of its terms, and fifth, there must be either evidence of due execution or that the deceased person intended the document to constitute his or her Will.

1. Here, there is evidence that the 2017 Will existed and of its terms, including that it revoked all prior wills and codicils. Clause 1 of the 2017 Will revokes all prior wills and codicils.
2. I have also found that the 2017 Will was properly executed. The terms of the 2017 Will and the circumstances of its preparation and execution also establish that the Deceased intended the will to constitute his will.
3. With regard to the presumption referred to by Campbell J, if a will last known to have been in the possession of the deceased cannot be found after death, it is presumed that the deceased destroyed it with the intention of revoking it. The presumption is one of fact. It may be overcome by facts showing a higher degree of probability that the will was accidentally lost or destroyed or, could not be produced for some other reason.[10]
4. The strength of the presumption of revocation varies according to the facts.[11] In Larussa v Carr the Court of Appeal explained the position as follows:[12]

...In other words, the circumstances of the case, including the facts concerning the character of the deceased's custody of the will, will influence what facts and evidence are necessary to rebut the presumption. In The Estate of Brett Whiteley, Powell J identified, as relevant circumstances, the character of the testator's custody over the will, and whether the will makes a careful and complete disposition of the testator's property, and said:

Where the Will makes a careful, and complete, disposition of the testator's property, and there are no other circumstances to point to a probable destruction, animo revocandi, by the testator, the presumption is so slight that it may be said not to exist.

Further explanation was given in Cahill v Rhodes/Rhodes v Cahill, where Campbell J said:

What Sugden v Lord St Leonards, and Finch v Finch, show is that if a testator has made a Will which makes a careful and complete disposition of his property, and an examination of the circumstances relevant to the Deceased's testamentary intentions between the time of the making of that Will and the time of his death does not reveal anything which shows that the testator had any reason to revoke the Will by destroying it, the strength of the presumption is weakened to such an extent that it is overcome. This is no more than a particular application of how the factual presumption can be overcome by circumstantial evidence which shows, on the balance of probabilities, that, even though the Will is missing at the testator's death, it is more likely than not that the reason for it being missing is something other than that the testator destroyed it with the intention of revoking it.

(footnotes omitted).

1. The onus of rebutting the presumption is on the party propounding the will. To rebut the presumption, the evidence must show it is more probable that the will was lost or stolen or, more generally, could not be produced for some reason other than that it was destroyed by the deceased with the intent to revoke it.[13] The presumption may be rebutted by evidence that the will simply went missing or was lost, as opposed to having been destroyed with the necessary intention.[14]
2. The ordinary standard of proof on the balance of probabilities applies, but the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to be proved. Even where the presumption may be weak, the court must still be satisfied that it has been displaced and feel an actual persuasion that the deceased did not destroy the will with the intention to revoke it.[15]
3. I am satisfied that it is more likely than not that the Deceased did not destroy the will with the intention of revoking it for three reasons.
4. First, the 2017 Will made a careful and complete disposition of the Deceased's property. It also corrected an error made regarding the Deceased name in the 2000 Will. Further, I am satisfied on the evidence that the fact that the 2000 Will made no provision for the families of the Deceased's predeceased children was also an error he wished to correct. After the 2017 Will was prepared, the Deceased expressed relief that he had prepared his 2017 Will to address these problems.
5. Secondly, there is no evidence to suggest that the Deceased intentions changed after he made the 2017 Will. Nor has this ever been suggested at any point in these proceedings.
6. Thirdly, there is evidence that the 2017 Will may have been lost. The Deceased kept the 2017 Will in a safe box which can no longer be located. This raises the possibility that the safe box containing the will has been lost.

1. I am satisfied on the evidence before me that the 2017 Will was properly executed, that the testator had the capacity to make that will when he made it, that he did not intend to revoke that will and that it is a valid testamentary instrument.
2. I am therefore satisfied that the plaintiffs are entitled to the relief they seek, including that the costs of and incidental to this action be paid from the estate of the Deceased on an indemnity basis.

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

[1] In the Estate of Kirs (1990) 55 SASR 61, 68 (Legoe J) quoted by EM Heenan J in Wheatley v Edgar [2003] WASC 118 (Wheatley) [17] - [18].

[3] Wheatley [24]; In the Will of Steward (decd) [1964] VicRp 26; [1964] VR 179, 185; Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277, 283.

[4] Wheatley; Fairclough v Cvitan [2019] WASC 370 [25] - [26].

[5] Affidavit of Jose Gomes Pereira Sworn 18 December 2024, Attachment "JGP-4", page 24.

[6] G E Dal Pont, Law of Succession, 3rd ed, LexisNexis, 2021, par 4.9, page 115, A Learmonth QC et al, Theobald on Wills, 19th ed, Sweet and Maxwell, 2021, pars [3-013] - [3-014] , pages 67 - 73.

[7] G E Dal Pont, Law of Succession, 3rd ed, LexisNexis, 2021, par 4.9, page 115.

[8] Re Male [1934] VicLawRp 52; [1934] VLR 318, 320 (Lowe J).

[9] Cahill v Rhodes [2002] NSWSC 561 [55].

[10] McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434; Cahill v Rhodes/Rhodes v Cahill [2002] NSWSC 561; Larussa v Carr as administratix of the estate of Guiseppe Larussa [2018] WASCA 127 [115] (Larussa v Carr).

[11] Powell v Dinwoodie [2012] WASC 139 [32] (Powell v Dinwoodie); Larussa v Carr [116].