RENTON -v- BUTLER [2025] WASC 545 (18 December 2025)

(1) affidavit of Joanne Renton sworn on 31 July 2024;

(2) affidavit of Rachael Irene Hume sworn on 1 August 2024;

(3) affidavit of scripts of Joanne Renton sworn on 1 October 2024;

(4) affidavit of scripts of Lee David Hume sworn on 2 October 2024;

(5) affidavit of scripts of Brett Alan Butler sworn on 13 September 2024; and

(6) affidavit of Brett Alan Butler sworn on 3 December 2025.

1. Joanne, Rachael and Lee each filed a notice of intention to abide.
2. Notwithstanding the consent of all parties, I must still be independently satisfied, on the basis of the evidence before me, that the 2022 Document is Ms Hume's last will.
3. At the conclusion of the trial I indicated that I was satisfied, based on the affidavit evidence before the court, that the 2022 Document embodies Ms Hume's testamentary intentions, that she intended it to be her last will and that she had testamentary capacity at the time that she executed it. I therefore, made orders in terms of the memorandum of consent orders filed 2 December 2025.
4. I indicated that I would publish reasons for my decision at a later time. Those reasons follow.

(1) starts with the phrase, 'Upon my death';

(2) appoints Joanne as executor of Ms Hume's estate;

(3) contains the words in handwritten black ink 'This is the last will and testament of Paula Ann Hume as at 6:50pm 6/4/2021' and is signed by the Ms Hume; and

(4) contains handwritten amendments to the typed document in red ink in the handwriting of Ms Hume, dated by Ms Hume '2/6/22', signed by Hume and contains the words 'Rachael & Lee 50% each' and 'overrides everything else'.

1. A court cannot make grant of probate in solemn form simply by consent of the parties. The court must be independently satisfied by sufficient evidence that a grant in solemn form of a will is appropriate. However, it is a relevant consideration where the parties have agreed upon orders for proof of a will in solemn form.[1]
2. In order to establish that proof of a will should be pronounced in solemn form, it is necessary for the propounding party to establish the following four matters:[2]

(1) due execution of the will;

(2) the deceased had testamentary capacity to make the will at the time of execution;

(3) the deceased knew and approved of the contents of the will; and

(4) the deceased intended that the document be his or her will.

1. In considering the first of these matters, that being due execution of the will, the starting point is to consider whether a will complies with the formal requirements set out in the Wills Act. Section 8 of the Wills Act provides:
   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. Where a will has been duly executed in accordance with s 8 of the Wills Act, there is a rebuttable presumption that the deceased had testamentary capacity and had knowledge of, and approved of, the contents of the will.[3]
2. However, the court may dispense with the formalities specified in s 8 of the Wills Act. An informal will may be admitted to probate pursuant to s 32 of the Wills Act which provides:
   1. Court may dispense with formal requirements

...

(2) A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in the manner required by this Act, constitutes -

(a) a will of the person; or

(b) an alteration to a will of the person; or

(c) the revocation of a will of the person; or

(d) the revival of a will or part of a will of the person,

if the Supreme Court is satisfied that the person intended the document to constitute the person's will, an alteration to the person's will, the revocation of the person's will or the revival of a will or part of a will of the person, as the case may be.

(3) In forming its view, the Supreme Court may have regard (in addition to the document) to any evidence relating to the manner of execution or testamentary intentions of the person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the person.

1. In Hatsatouris v Hatsatouris, [4] the New South Wales Court of Appeal said that the following elements must be satisfied in order for the court to dispense with the formal requirements of execution of a will under an equivalent provision to s 32 of the Wills Act:

(1) the will is a document;

(2) the will purported to embody the testamentary intentions of the deceased; and

(3) either at the time the will was brought into existence or at some later time, the deceased, by some act or words demonstrated that the subject document without more on his part, was to operate as his will.[5]

1. In relation to the second requirement as to testamentary capacity, the applicable test has been described in the following terms:[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. Although a deceased must have testamentary capacity in order to know and approve of the contents of his or her will, that knowledge and approval is a separate requirement in order to prove a will. Knowledge and approval of the contents of a will means that the will represents the testamentary intentions of the deceased.[7]
2. Finally, the requirement that the deceased intended the document to be his or her will generally be satisfied if the deceased had testamentary capacity and knew and approved of the contents of the will.

1. The following issues arise in these proceedings:

(1) given that the 2022 Document was not executed in accordance with s 8 of the Wills Act, pursuant to s 32 of the Wills Act:

(a) does the 2022 Document embody the testamentary intentions of Ms Hume?; and

(b) at the time the 2022 Document was brought into existence, or at some later time, did Ms Hume demonstrate by some acts or words that the 2022 Document was, without more on her part, to operate as her will?

(2) did Ms Hume have testamentary capacity to make the 2022 Document at the time that she signed it?

(3) did Ms Hume know of and approve the contents of the 2022 Document? and

(4) did Ms Hume intend the 2022 Document to be her will?

1. Before determining each of the issues, I will first summarise the unchallenged evidence adduced at trial.
2. Rachael's unchallenged evidence is that:

(1) on 6 April 2021, Ms Hume handed her a yellow sealed A4 envelope (Yellow Envelope) and informed her it contained all of Ms Hume's passwords and Ms Hume's will;

(2) Rachael put the Yellow Envelope in her bedroom beside table and did not open it;

(3) on 4 June 2022, Ms Hume attended Rachael's home and asked for the Yellow Envelope. Ms Hume unsealed the Yellow Envelope, crossed out and wrote some things and sign her name and then put the papers back into the Yellow Envelope and handed them to Rachael;

(4) on 9 August 2022, Ms Hume sent a message to Rachael by Facebook Messenger which said 'The safe is in the wardrobe at home where my documents are, addressed to you, has this password is to get into it if you need it' and gave Rachael the code for the safe. As the original Yellow Envelope was a Rachael's house, Rachael believes that Ms Hume was referring to copies of the documents in the Yellow Envelope;

(5) on 3 October 2022, Ms Hume attended Rachael's home and asked for the Yellow Envelope. Ms Hume pulled some papers out from the Yellow Envelope, write some things and sign her name. Ms Hume then re-sealed the Yellow Envelope;

(6) Rachael kept the Yellow Envelope in her bedside table drawer and did not open it;

(7) on 23 January 2024, Rachael relocated from Australia to Canada. Shortly before Rachael left for Canada, Ms Hume said to her that she should make sure she took the Yellow Envelope with her to Canada;

(8) the day that Rachael left for Canada, Ms Hume put the Yellow Envelope in Rachael's carry-on bag and said to her that she should make sure she kept her 'will' in her carry-on bag to ensure that it was kept flat;

(9) after Rachael arrived in Canada, Ms Hume asked her, during a telephone conversation, whether she had the 'will'. Rachael told Ms Hume that she did and Ms Hume said that she was grateful her 'will' had arrived in Canada;

(10) Rachael returned to Australia after Ms Hume died and brought the Yellow Envelope with her;

(11) on 11 March 2024, in the presence of Lee and other people, she opened the Yellow Envelope for the first time. It contained:

(a) a white A5 envelope with the words 'For Rachael', the deceased's signature and the date '3 Oct 2022' written on the front of the front of envelope. On the back of the white envelope were, amongst other things, two dates written '2/6/22' and '4/6/22' with the former date crossed out;

(b) inside the white envelope was a two-page document with a table and rows crossed out - on the first page of this document was the deceased's signature and the date '2/6/22' and on the second page was Ms Hume's handwriting, her signature and the date '6/4/2021';

(c) inside the white envelope were several printed emails arranged in two bundles (one with 13 pages, one with six pages) which contained Ms Hume's details and passwords to her computers, devices and bank accounts;

(12) all of the handwriting on the documents contained in the Yellow Envelope was Ms Hume's;

(13) Rachael has conducted (and has asked Ms Hume's employer to conduct) searches of Ms Hume's devices and not located any other documents purporting to be a will or testamentary instrument of Ms Hume's;

(14) Rachael has no reason to be believe that Ms Hume lacked testamentary capacity at any time before her death;

(15) Ms Hume frequently talked to Rachael about the existence of her will;

(16) in December 2023, Ms Hume told Rachael that she only wanted Rachael and Lee to be looked after when she died and that she did not want any future partners or her ex-husband to take that away from Rachael and Lee; and

(17) in January 2024, Rachael and her fiancé had an engagement party at Ms Hume's house in Ocean Reef. Ms Hume told Rachael that she was glad her property was increasing in value due to the development of the Ocean Reef Harbour as this was something she was passing down to Rachael and Lee.

(1) on the dates 6 April 2021, 2 June 2022, 4 June 2022 and 3 October 2002, Ms Hume was living at 77 Southern Cross Circle, Ocean Reef;

(2) since Ms Hume's passing, Brett has lived at the Ocean Reef house;

(3) on 10 March 2024, she went to the Ocean Reef house and searched the office and Ms Hume's belongings for any wills or testamentary instruments, but did not find any;

(4) on 12 March 2024, Brett told her that he had searched the Ocean Reef house and that he had not found any wills or testamentary instruments;

(5) Lee informed her that, on 22 March 2024, he went to the Bendigo Bank and the P&N Bank, where Ms Hume had bank accounts, and asked whether Ms Hume had any safe deposit boxes and was informed that she did not;

(6) Joanne has no reason to be believe that Ms Hume lacked testamentary capacity at any time before her death; and

(7) at the beginning of October 2022, Ms Hume was at Joanne's house and told Joanne that she had made sure that her kids were looked after if she were to pass away. Ms Hume also told her that she was concerned about Lee's medical bills.

(1) if the 2022 Document was proved as Ms Hume's informal will, her estate would be distributed to Rachael and Lee in equal shares;

(2) if the 2022 Document was not proved as Ms Hume's informal will, her estate would be distributed between Brett, Rachael and Lee in accordance with s 14 of the Administration Act 1903 (WA) (Administration Act).

1. On the basis of this unchallenged evidence I am satisfied that:

(1) the 2022 Document does embody the testamentary intentions of Ms Hume and that she demonstrated that it was, without more on her part to operate as her will. Ms Hume referred to the 2022 Document, placed in a sealed envelope and provided to Racheal, as her 'will'. In October 2022, Ms Hume told Joanne that Rachael and Lee were looked after if she were to pass away - this was after she has made the handwritten amendments to the 2022 Document on 4 June 2022. The 2022 Document is consistent with what Ms Hume told Joanne;

(2) Ms Hume did have testamentary capacity at the time that she signed the 2022 Document, that is on 4 June 2022; and

(3) Ms Hume knew of and approved the contents of the 2022 Document and intended it to be her will. Ms Hume entrusted the 2022 Document to Rachael, along with other important documents. There is no evidence of any change in Ms Hume's intention that the 2022 Document be her will after the date that she signed the handwritten amendments to it.

1. It is also relevant that all persons who are affected by the outcome of these proceedings have been joined to the proceedings and consent to the grant in solemn form of the 2022 Document as the will of Ms Hume.
2. I am independently satisfied, on the basis of the evidence before the court, that a grant in solemn form of the 2022 Document as the last will of Ms Hume is appropriate.

1. Section 36 of the Administration Act provides that where, inter alia, an executor is named in a will, that executor not being willing and competent to take probate, the court may '... appoint an administrator of the estate of the deceased ... and such administration may be limited as the Court thinks fit'.
2. The purpose of this provision is to facilitate the due administration of the estate of the deceased.
3. The 2022 Document appoints Joanne as executor. The only beneficiaries of the 2022 Document are Rachael and Lee. All three have renounced their right to apply for probate of the 2022 Document and consent to the appointment of Brett as the administrator of Ms Hume's estate.
4. Brett deposes that he is familiar with Ms Hume's affairs and is in the best position to efficiently and promptly administer Ms Hume's estate.
5. I consider that it is appropriate in these circumstances for Brett to be appointed administrator of Ms Hume's estate.

1. I make the following orders as sought by the parties in the memorandum of consent orders dated 2 December 2025:
   1. There be a pronouncement of the force and validity of the Altered Document (as defined in the Statement of Claim dated 7 August 2024) together with the handwritten amendments, a copy of such document being marked as Attachment 'JR-1' to the Affidavit of Scripts of Joanne Renton sworn on 1 October 2024 (Will) in solemn form of law.
   2. A Probate Registrar of this Court issue a grant of letters of administration (with will annexed) of the Will in solemn form of law to the Defendant, pursuant to section 36 of the Administration Act 1903 (WA).
   3. There otherwise be no order as to costs.

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 [26] (EM Heenan J); applied in Tolson v Hender [2009] WASC 319 [4] (Hall J); The Public Trustee v Gerritsen [2012] WASC 201 [14] (Beech J); Fairclough v Cvitan [2019] WASC 370 [26] (Kenneth Martin J).

[2] Fisher v Kay [2010] WASCA 160 [82].

[3] West Australian Trustee Executor and Agency Company Ltd v Holmes [1961] WAR 144, 146.

[4]Hatsatouris v Hatsatouris [2001] NSWCA 408 [56] cited with approval in Oreski v Ikac [2008] WASCA 220 [53].

[5] Cited with approval in Oreski v Ikac [2007] WASC 195 [105].

[6] Timbury v Coffee [1941] HCA 22 (1941) 66 CLR 277, 283 (Dixon J)

[7] Veall v Veall [2015] VSCA 60 [173] (Santamaria JA)