TAN -v- TAN [2025] WASC 491 (25 November 2025)

1. The proceedings were commenced by writ and statement of claim on 23 April 2025. The defendant filed a Notice of Intention to Abide on 29 May 2025.
2. On 29 August 2025, a registrar ordered that the matter proceed to trial on an undefended basis, that the evidence could be adduced by affidavit, and dispensed with the requirement that the parties each file an affidavit of scripts.

1. In support of his application, the plaintiff read the affidavits of:

(a) Cephas Bin Tan (the plaintiff) sworn on 24 September 2025; and

(b) Yew Han Hee sworn on 9 September 2025.

1. Yew Han Hee deposed that he is a legal practitioner in Western Australia, and that he was one of the witnesses to the Will. He deposed that he translated the Will from English into Mandarin for the Deceased and, after the Deceased indicated he understood its contents, the Will was executed by the Deceased in the presence of him and the other witness to the Will, and they each then signed as witnesses in the presence of the Deceased and each other.
2. By the Will, the Deceased appointed both the plaintiff and the defendant as the institute executors and trustees of the Will and:

(a) devised all of his interest in a Como property to the defendant;

(b) forgave and released the plaintiff of any debt due and owing by him to the Deceased at the time of the deceased's death; and

(c) gave the residue of his estate, both real and personal, to the plaintiff and the defendant in equal shares as tenants in common, to each hold their respective share on trust in accordance with the terms of the Will.

1. Probate of the Will has not been granted at this stage. However, the defendant did file an application for probate in the non‑contentious probate jurisdiction of the court prior to these proceedings being commenced. She has declined to renounce probate.
2. The plaintiff's affidavit deals extensively with the nature of the dispute between him and the defendant. Given the defendant did not seek to challenge any of the material in the affidavit, and did not seek to adduce a responsive affidavit, it is unnecessary to set out that information for the purposes of this decision. The evidence does not enable me to be satisfied of more than the fact that each of the plaintiff and the defendant have made allegations against each other which are significant in terms of their relationship as siblings and potential executors. It would not be appropriate for me to decide on the basis of the material adduced where fault might lie.
3. An independent administrator has given his consent in writing to being so appointed.

Applicable legal principles Grant of probate in solemn form

1. The difference in effect between a grant of probate in common form and a grant of probate in solemn form is that the former is revocable and the latter, with some limited exceptions, is irrevocable.[1]
2. The application has proceeded on an unopposed basis. Whilst that position is a consideration to which the court gives weight in determining whether to grant relief of the kind sought, a grant of probate in solemn form cannot be made by the consent of the parties.[2]
3. In order to make a grant of probate for a will in solemn form, the court must be independently satisfied on the evidence adduced that the documents sought to be propounded constitute the last will and testament of a free and capable testator.
4. In so doing I must consider whether sufficient evidence has been adduced to:

(a) satisfy the minimum requirements for validity of the testamentary document sought to be proved requiring, at least, due execution;[3] and

(b) demonstrate that the testator had capacity and knew and approved of the contents of each of the testamentary documents at the time they were executed so that it can be said that the testator understood the effect of what he was doing.[4]

1. Two presumptions of fact arise in the proof of wills for probate purposes:

(a) if the propounder of a will proves that the will is regular on its face and has been duly executed, a presumption arises that the testator had testamentary capacity; and

(b) if testamentary capacity is proved, due execution of the will also raises a presumption that the testator knew and approved of the contents of that will at the time of execution.[5]

1. In the present case, no party seeks to satisfy the evidentiary burden required to displace those presumptions and the evidence adduced does not give rise to any cause for concern in that regard.

1. The application is made by the plaintiff under the court's inherent jurisdiction.
2. Under s 18 of the Supreme Court Act 1935 (WA), this court has voluntary and contentious probate jurisdiction and authority in relation to the granting or revoking of probate of wills and letters of administration of all real and personal estate whatsoever within Western Australia of any deceased person and all such powers and authorities in respect of such jurisdiction as were given to the court by the Administration Act 1903 (WA) and any other Act in force before then with authority to hear and determine all questions relating to testamentary causes and matters.
3. Further, under s 23 of the Supreme Court Act, the court has the authority conferred on Her Majesty's Courts at Westminster or by or before the Lord Chancellor or any Equity Judge in every proceeding as conferred by any Act of Parliament in force in England on 1 June 1829 and applicable to this State, subject to any express enactment to the contrary and to any rules of court. The continuation of that jurisdiction in relation to the estates of deceased persons is confirmed by s 4 of the Administration Act.[6]
4. There is no specific provision in the Administration Act (or any other legislation) which gives this court the power to make an order passing over the executors in the circumstances of this case.
5. However, there is no doubt that in principle, the court has power to pass over an executor appointed under a will, pursuant to its inherent, or inherited, jurisdiction.[7]
6. It is also well established that that power will not be exercised lightly. It has often been said that the circumstances in which it will be exercised are 'exceptional' or 'special', recognising that it is a serious matter to pass over an applicant for a grant who is an executor named by the deceased, it being presumed that that person was a person in whom the deceased had trust and was considered by the deceased to be suitable and capable of performing the duties required of an executor.[8]
7. However, as Pritchard J observed in Woodley v Woodley [No 2]:

Notwithstanding the respect which must be afforded to the wishes of the deceased, the primary concern of the Court in the exercise of its discretion to pass over an executor will be to ensure that the estate will be duly and properly administered according to the terms of the will, in the interests of the parties beneficially entitled to the estate. The test will be whether the due and proper administration of the estate has been put in jeopardy or prevented, either by reason of acts or omissions on the part of the executor, or by virtue of matters personal to him or her, or by virtue of the proof of other matters which establish that the executor is not a fit and proper person to carry out the duties of an executor. (citations omitted).[9]

1. In Re Estate of Crane, Besanko J set out some examples from English cases of grounds on which an executor had been passed over or probate had been revoked:

(a) the executor was of bad character, had been convicted of manslaughter in relation to the death of the testator and was in prison;

(b) the executor had neglected his duties;

(c) the executor had intermeddled in the estate and refused to take a grant;

(d) the executor was absent abroad;

(e) the executor was suffering from ill-health;

(f) the executor was of unsound mind;

(g) the executor was not competent to take probate;

(h) the executor had disappeared;

(i) the estate was insolvent.[10]

1. In R v Arklie (No 2),[11] Moore J observed:

These examples are not exhaustive and do not limit the grounds upon which a named executor may be passed over. In a number of cases, named executors have been passed over in favour of an independent person or the Public Trustee because the relationship between the named executors has deteriorated 'to the point where there is no realistic expectation that they will be able to work together in the interests of the estate.'[12] These cases helpfully illustrate the application of passing over principles where there is sustained and irreconcilable conflict between named executors.

1. I am satisfied that the Will is regular on its face and was duly executed, that is, signed by the Deceased in the presence of two witnesses.
2. The Deceased is accordingly presumed to have had testamentary capacity, and it is presumed that he knew and approved of the Will. Neither party has sought to displace those presumptions, to which effect should be given.

1. I have not set out the nature of the dispute between the parties. In the circumstances of this case, it is sufficient for me to state that I am satisfied on the basis of the evidence produced that the relationship between the plaintiff and the defendant is presently such that there is no realistic prospect that they would be able to meaningfully cooperate as co-executors of the Deceased's estate to properly complete its administration, and no significant likelihood that they would be able to do so in the future.
2. I am also satisfied that there has been such a breakdown in the trust between the plaintiff and the defendant that if only one of them were to be granted probate, there would likely be significant disputes arising during the administration of the estate. While not a very small estate, it is also not an extensive estate, and such disputes will only result in the diminution of the estate, to the detriment of both the plaintiff and the defendant.
3. Given the dispute between the plaintiff and the defendant in part relates to their respective views about the other's dealings with the assets of the Deceased before his death, and how that might impact on the administration of the estate, it is necessary for an independent person to impartially assess the Deceased's estate.
4. However, I am also not able to be satisfied that appointment of an independent administrator will definitely remove the possibility of disputes as to the administration of the estate, as it appears the decisions required of the administrator relate to potential debts owed to the estate by one or both of the parties, which may be contested by them.
5. Notwithstanding this, it is my view that it is appropriate to take the unusual step of passing over both named executors of the Will in this case. This is not a case in which the named executors merely do not get on, it is plain from the evidence that they are unable to communicate with each other, or even meaningfully communicate through a third party. Administration of the estate by one, or both, of the named executors is not a feasible outcome. In the circumstances, neither is a suitable or appropriate person to be granted probate.
6. In my view, the circumstances are sufficiently special to warrant the exercise of the court's discretion to pass over the named executors to ensure the due and proper administration of the estate in accordance with the terms of the Will.

1. As the plaintiff and the defendant are the only people who have an interest in the Deceased's estate, there is no person interested in the estate who is entitled to seek a grant of letters of administration.
2. Section 36 of the Administration Act provides:

Administration with will annexed

Where a person dies leaving a will but without having appointed an executor, or leaving a will and having appointed an executor who is not willing and competent to take probate or is resident out of Western Australia, the Court may appoint an administrator of the estate of the deceased, or of any part thereof, and such administration may be limited as the Court thinks fit.

1. The plaintiff relied upon the decision in Cronan v Coates[13] as authority for the proposition that the court has the power to appoint an independent administrator. However, that decision was made pursuant to s 36 of the Administration Act on the basis that both named executors had renounced. That is not the case in this matter. In this case, there was no evidence that the defendant was not 'willing' to take probate. Indeed, she had applied to do so.
2. Counsel for the plaintiff submitted that, if the court determined that both named executors should be passed over in the exercise of the inherent jurisdiction of the court, that would result in a situation in which the Deceased had died 'having appointed an executor who is not willing and competent to take probate'. Counsel submitted that, in those circumstances, s 36 of the Administration Act was then enlivened, and an order could be made appointing an independent administrator.
3. In my view, that argument should be accepted. The appointed executor(s) must be both 'willing' and 'competent'. The online Oxford English Dictionary defines 'competent' as 'suitable, fit, appropriate, proper'. I have found that neither of the named executors is a suitable or appropriate person to whom to grant probate in this case. Accordingly, the Deceased has not appointed an executor who is both willing and competent to take probate.
4. In the circumstances, it is appropriate to appoint an independent administrator pursuant to s 36 of the Administration Act. I am satisfied that the person nominated by the plaintiff is a suitable person to be appointed as the independent administrator.

(1) It is pronounced that the last will and testament of Check Koon Tan, late of Aegis Murdoch, 16 Fiona Wood Road, Murdoch in the State of Western Australia, who died on 11 December 2024, executed on 20 December 2017 (the Will), is valid and has force and effect in solemn form of law.

(2) The named institute executors under the Will, namely Cephas Bin Tan and Pey Vivian Tan be passed over as executors of the estate of the late Check Koon Tan.

(3) Subject to filing with the Probate Office of the Supreme Court an affidavit in compliance with rule 8 of the Non-contentious Probate Rules 1967, a registrar of this court issue a Grant of Letters of Administration (with the Will annexed) in solemn form of law to Ian Torrington Blatchford of Blatchfords Lawyers, 1/14 ‑ 16 Irwin Street, Perth, Western Australia 6000.

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; (2003) 4 ASTLR 1 [18].

[2] Fairclough v Cvitan [2019] WASC 370 [26].

[4] Grant Thomas Russell as executor of the will of Emily Jane Anderson v Anderson [2021] WASC 435 [11].

[5] Scaffidi v Scaffidi [No 2] [2022] WASC 227 [94] ‑ [95].

[6] Tsaknis as Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (dec) v Lilburne [2010] WASC 152 [51].

[7] Woodley v Woodley [No 2] [2017] WASC 94 [44]; Tsaknis as Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (dec) v Lilburne [51] ‑ [53] (Heenan J).

[8] Woodley v Woodley [No 2] [45]; Tsaknis as Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (dec) v Lilburne [60] ‑ [61] (Heenan J).

[9] Woodley v Woodley [No 2] [46]; Cardaci v Cardaci [2023] WASCA 158 [541] ‑ [546].

[10] Re Estate of Crane [2005] SASC 379 [25].

[11] R v Arklie (No 2) [2019] VSC 350.

[12] Woodley v Woodley (No 2) [2017] WASC 94 [48], citing Jurkiewicz v Jurkiewicz [2013] ACTSC 89 [13], [26]; In the Estate of Stuart (dec'd) [2009] SACS 399; [2009] SASC 399; (2009) 106 SASR 39 [25]; Tsaknis as Executor and Trustee of the Estate of Geoffrey Douglas Roland Lilburne (Dec) v Lilburne [2010] WASC 152 [70] ‑ [72].

[13] Cronan v Coates [2024] WASC 184.