RENNIE -v- MOORE-CROUCH & ORS [2025] WASC 426 (7 October 2025)

1. At trial, all evidence was adduced by affidavit, and the following affidavits were tendered:

(a) affidavit of scripts sworn by Mr Rennie on 29 April 2024;[4]

(b) affidavit of due execution sworn by Mr Rennie on 13 June 2024;[5]

(c) affidavit of due execution sworn by Marta Benporath on 10 July 2024;[6]

(d) affidavit sworn by Mr Rennie on 26 May 2025;[7] and

(e) affidavit sworn by Mr Rennie on 18 September 2025.[8]

1. The affidavit of scripts sworn by Mr Rennie on 29 April 2024 record that the deceased had previously executed the following testamentary instruments:[9]

(a) a will dated 23 November 1999;

(b) a codicil dated 30 November 2010;

(c) a will dated 16 July 2018;

(d) a will dated 15 August 2018;

(e) a will dated 13 February 2019; and

(f) the Will.

1. Mr Rennie, a solicitor employed by Tolson & Co, was engaged by the deceased to prepare the 2018 wills, the 2019 will and the Will. He also represented the deceased in a matter relating to the deceased's late son's estate in 2020.
2. All of the deceased's previous testamentary dispositions were revoked by the Will.

1. The circumstances leading to the making and execution of the Will are set out in the affidavit evidence of Mr Rennie and Ms Benporath.
2. Based on my consideration of their evidence, I find that those circumstances were, in summary, as follows:

(1) On 18 February 2022, the deceased called Mr Rennie to discuss her enduring powers of attorney and guardianship, in which they discussed these matters for approximately an hour.[10]

(2) On 17 May 2022, the deceased called Mr Rennie and requested he visit her to discuss her will, and her enduring powers of attorney and guardianship. After this call, a meeting was scheduled for 24 May 2022 but was postponed to 31 May 2022 due to COVID‑19.[11]

(3) On 31 May 2022, Mr Rennie spent approximately 3 hours with the deceased at the home of the fourth defendant, who had left the home when Mr Rennie arrived.[12]

(4) The enduring powers of attorney and guardianship were to be executed on this day, and Mr Rennie waited with the deceased for her niece to arrive to witness the documents. Whilst waiting for the deceased's niece, Mr Rennie had a 'lengthy' conversation with the deceased about proposed changes to her will.[13]

(5) On 3 June 2022, the deceased called Mr Rennie again regarding the will, in which they spoke for approximately 10 minutes. The conversation related particularly to the money the deceased had received from her late son's estate.[14]

(6) On 6 July 2022, the deceased called Mr Rennie and they spoke for approximately 50 minutes. In the conversation, the deceased:[15]

(a) advised Mr Rennie that she was unhappy with the medical treatment she was receiving at Osborne Park Hospital;

(b) instructed Mr Rennie to prepare a new will, leaving the money from her late son's estate to the fourth defendant as she had 'done everything' in relation to his estate and that the intervention in those proceedings by her other daughters had 'cost her a fortune for no reason or benefit'; and

(c) discussed gifts to her grandchildren with Mr Rennie.

(7) On 12 July 2022, Mr Rennie attended the deceased's hospital room. He spent 50 minutes with her, and read the draft will to her, answered her questions, and discussed how specific assets were to be disposed of under the Will. After the deceased confirmed she was happy, the Will was duly executed.[16]

1. By the Will, the deceased's estate is effectively to be distributed in the following manner:

(1) The fourth defendant is to receive funds held in certain bank accounts with BankWest (BankWest accounts) (which I infer is the money the deceased received from her late son's estate).[17]

(2) The deceased's 8 grandchildren, the fifth to twelfth defendants, are each to each receive a sum of $5,000 or $10,000, depending on the value of the remaining assets in the deceased's estate as at the date of her death.[18]

(3) Following payment of any debts, funeral and testamentary expenses and all applicable duties, the remainder of the estate is to be divided equally between the first to fourth defendants,[19] with certain contingencies being allowed for if any of her daughters predeceased her.[20]

1. As noted earlier, by the Deed the parties agreed that this matter proceed to trial on an undefended basis.
2. The Deed also relevantly contemplates that, if the court accepts the validity and force of the Will in solemn form, the estate be distributed in accordance with the terms of the Will, save that a settlement sum totalling $77,000 be paid to the first, second and third defendants from the BankWest accounts.[21]
3. In circumstances where the value of the estate is to be reckoned to the exclusion of the funds in the BankWest accounts for the purposes of the legacies payable to the deceased's grandchildren under cl 4 (alternatively, cl 5) of the Will, I am satisfied that those legacies remain unaffected by the terms of the Deed.

1. As counsel for Mr Rennie correctly submits, it is trite that the parties to a probate action cannot simply consent to a solemn form grant being made.[22] Rather, the court must satisfy itself there is evidence of the formal validity of a will.[23]
2. The relevant legal principles were summarised by Lemonis J in Allen v Quinn [2025] WASC 2 at [15] - [25]. I gratefully adopt, without repeating, his Honour's helpful analysis set out in those paragraphs.[24]
3. Noting the principles identified by Lemonis J, the key issue I must determine in this case is whether there was 'due execution' of the Will.

1. There will be a presumption of due execution where a will, regular on its face, bears the signatures of the testatrix and two witnesses.
2. It was submitted by counsel for Mr Rennie that the evidence establishes that the Will was duly executed.[25]
3. I agree.
4. On its face, the Will meets the requirements of due execution. It is signed by the deceased, bearing a signature that is self-evidently sufficiently similar to signatures on the deceased's previous wills. It is also signed by two witnesses: Ms Benporath and Mr Rennie.
5. I am also satisfied there is no evidence before me that rebuts the presumption of due execution. Indeed, I am positively satisfied that the circumstances described in the affidavits of Mr Rennie and Ms Benporath support a finding that the Will was duly executed.
6. As Lemonis J observed in Allen v Quinn, three presumptions arise where a will has been found to be duly executed: testamentary capacity, knowledge and approval of the contents of the will, and testamentary intention.[26]
7. Each presumption is capable of being displaced.
8. I turn to address each of these presumptions.

1. I am satisfied that this presumption operates, and that there is no evidence before me to displace its application.
2. While I am cognisant of the defences filed in this matter which, in effect, allege the deceased lacked the requisite testamentary capacity at the time of creating the Will, I consider these allegations to now have been abandoned in consequence of the parties having entered into the Deed and the first to fourth defendants having withdrawn their defences.[27]
3. In any event, I am positively satisfied on the evidence before me that at the time the Will was executed, the deceased had the requisite testamentary capacity.
4. In this regard, I note the following:

(1) The affidavit of due execution sworn by Mr Rennie records a series of conversations he had with the deceased spanning multiple months regarding the amendments leading to the making of the Will.

(2) Regarding his meeting with the deceased on 31 May 2022 and conversation with her on 6 July 2022, Mr Rennie relevantly deposes that:[28]

1. ...it was clear to me that although the Deceased was becoming frail she had a full understanding of what was being undertaken by signing enduring powers of attorney and guardianship and proposing changes to her will.

1. ... I had no reason to doubt that the deceased had capacity to give those instructions. She was quite clear in her instructions and appeared to me to have full knowledge of the extent of her assets and how she wanted them distributed.

To similar effect, in relation to his meeting with the deceased on 12 July 2022, Mr Rennie deposes that:

1. I asked the Deceased if she was happy with the terms of the will and she said she was. I had no doubt that she was fully cognisant of its terms.
2. Mr Rennie is an experienced estates solicitor. Given his experience, considerable probative weight may be attached to his evidence regarding the deceased's testamentary capacity. I accept his evidence.
3. I also note that, in her evidence, Ms Benporath deposes:[29]
   1. ... I did not have any concerns that she was unable to comprehend what was going on around her or that she was unable to understand our conversations.

1. I did not have any concerns about Valerie's ability to understand what she was signing.
2. Ms Benporath gave unchallenged evidence that she had been a good friend of the deceased for approximately 14 years prior to the deceased's passing. I accept her evidence.
3. While the deceased elected to leave the fourth defendant a larger portion of her estate than the rest of her daughters, I am nonetheless satisfied that the Will reflects an objectively rational disposition. I hold this view for at least the following reasons:

(1) The deceased had a history of making pecuniary provision for the grandchildren in as early as the 2019 will.

(2) Provision is made for the deceased's daughters in substantially similar terms as in the 2019 will.

(3) The deceased's late son, who predeceased her, had no children prior to his passing for whom the deceased could make provision.

(4) The explanation for leaving the fourth defendant a larger portion of her estate is adequate.

1. I also note that the causes of death recorded on the death certificate appear to be ailments which primary impacted the deceased's physical health rather than her mental or cognitive functioning.[30] Accordingly, there is nothing arising from the deceased's death certificate which, in my view, gives rise to any cause for concern as to her testamentary capacity at the time she executed the Will.
2. In all the above circumstances, I am satisfied that the deceased had to requisite testamentary capacity to make the Will.

Knowledge and approval and testamentary intention

1. I am similarly satisfied that these two presumptions also operate and that they have also not been rebutted by any evidence before me.
2. I am in any event positively satisfied, on the evidence, that the deceased knew and approved of the contents of the Will, and that it was her intention for the document to be her final will.
3. I rely, in particular, on the following matters in support of this finding:

(1) The Will, in the chapeau, revokes all the deceased's previous wills.[31]

(2) The reasoning for the changes in the division of the deceased's assets, as was identified in Mr Rennie's affidavit,[32] was objectively rational.[33]

(3) The Will reflects instructions that were given to the deceased's solicitor over a period of at least a month.

(4) Save for the provisions regarding the distribution of the money she received from her late son's estate, the Will is largely consistent with the deceased's previous wills; it leaves each grandchild a small sum with the residue being disbursed between her children.

(5) Mr Rennie's evidence to the effect that, based on his lengthy communications with the deceased regarding the Will, he considered the deceased to be fully aware of her assets and how she wished for them to be distributed, and that she had a full understanding of what was being undertaken by signing the enduring powers of attorney and guardianship and proposing changes to her will.[34]

(5) Mr Rennie's evidence to the effect that after he read the draft will to the deceased, she asked if she should include reasons for why the money from her late son's estate was being given to the fourth defendant.[35] In my view, this supports an inference that the deceased had a comprehensive and competent understanding of the potential ramifications of the manner in which she wished for her estate to be distributed.

1. For similar reasons, I am satisfied that the deceased was fully cognisant of the terms of the Will and approved them. Accordingly, I find that the deceased intended the document to be her final will.

1. Mr Rennie seeks an order that his costs be paid out of the deceased's estate on an indemnity basis.
2. It is well established that an executor of a deceased estate is entitled to be indemnified out of the assets of the estate for costs properly incurred by him or her in its due administration.[36]
3. Moreover, it is well established that an executor has an absolute right to seek proof in solemn form of a will, which is irrevocable.[37] It follows, as counsel for Mr Rennie correctly submitted, that an executor may invoke this right whenever there is any doubt as to the validity of a will.
4. As Mr Rennie sues in his capacity as executor of the deceased's estate it is in my view only fair and reasonable that he be indemnified out of the assets of the estate for the costs he has reasonably incurred in relation to this litigation.
5. I am also satisfied that Mr Rennie ought to be permitted to recover such costs on an indemnity basis to the extent that any such costs were not unreasonably incurred.

1. For the foregoing reasons, I considered it was appropriate to pronounce the force and validity of the Will in solemn form.
2. Accordingly, I made the following orders:
   1. The Court pronounces that the will of Valerie Gwennyth Vera Croker late of [suppressed] executed on 12 July 2022 (the Will) has force and effect in solemn form of law as the last will of the late Valerie Gwennyth Vera Croker.
   2. A Probate Registrar shall settle a grant of probate of the Will to the plaintiff, as the executor named in the Will.
   3. The plaintiff's costs of the action be paid out of the estate of the late Valerie Gwennyth Vera Croker on an indemnity basis, save to the extent that any such costs were not reasonably incurred.

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

[1] Affidavit of Edward Anthony Rennie sworn 26 May 2025 [6], Annexure 'EAR1'.

[2] Amended Statement of Claim dated 13 July 2023, [9].

[3] Affidavit of Edward Anthony Rennie sworn 26 May 2025, Annexure 'EAR2'.

[21] Exhibit D, Annexure 'EAR2' cl 3.2, cl 3.3, cl 3.4.

[22] Wheatley v Edgar [2003] WASC 118, [24] - [25], [30]; Devine v Richardson [2019] WASC 272, [27] - [29].

[24] See also Burgess v Davey [2025] WASC 343 [17] - [28] (Strk J); Tucker v Tucker [2025] WASC 382 [12] - [22] (Seaward J).

[25] Plaintiffs outline of opening submissions filed 18 September 2025, [21].

[27] Plaintiff's outline of opening submissions filed 18 September 2025, [7] -[8].

[30] Exhibit D, [6], Annexure 'EAR1'.

[36] Drummond v Drummond [1999] NSWSC 923 [47] (Austin J); Irmayanti v Hollingsworth [2021] WASC 429 [66] (Allanson J); Abrugiato v Hansen (as Exexutor of the Estate of Abrugiato (No 2)) [2013] WASC 119 [37] (Corboy J).