Burgess v Davey - [2025] WASC 343

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   BURGESS -v- DAVEY [2025] WASC 343
CORAM:   STRK J
HEARD:   19 AUGUST 2025
DELIVERED          :   22 AUGUST 2025
FILE NO/S:   CIV 2196 of 2024
BETWEEN:   LYNDA LEE BURGESS
Plaintiff

AND

SHANE DAVEY
First Defendant

AHLIA SAXTON
Second Defendant

RACHELLE SINCLAIR
Third Defendant

SHANE DAVEY, AHLIA SAXTON, RACHELLE SINCLAIR
Plaintiffs by counterclaim

LYNDA LEE BURGESS
Defendant by counterclaim

Catchwords:

Wills - Probate - Proof of will in solemn form - Compromise - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA) Order 73
Wills Act 1970 (WA)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	RJ Squires
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Plaintiffs by counterclaim	:	No appearance
Defendant by counterclaim	:	RJ Squires

Solicitors:

Plaintiff	:	Corinne Griffin & Co
First Defendant	:	Tan & Tan Lawyers
Second Defendant	:	Tan & Tan Lawyers
Third Defendant	:	Tan & Tan Lawyers
Plaintiffs by counterclaim	:	Tan & Tan Lawyers
Defendant by counterclaim	:	Corinne Griffin & Co

Case(s) referred to in decision(s):

Allen v Quinn [2025] WASC 2
Attwell v Morgan [2019] WASC 182
Bailey v Bailey (1924) 34 CLR 558
Blain v Kelsall [2023] WASC 358
Donato v Mangravite, Estate of Donato [2005] NSWSC 488
Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786
Fisher v Kay [2010] WASCA 160
In the Will of Wilson (1897) 23 VLR 197
Scattini v Matters [2004] QSC 459
Seeley v Back [2005] NSWSC 68
Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277
Veall v Veall [2015] VSCA 60
Wheatley v Edgar [2003] WASC 118

STRK J:

Introduction

The plaintiff applies for an order that the court pronounce the force and validity of the will of Sarah Campbell-Wood dated 18 September 2023. Ms Campbell-Wood, who was also known as Sally Dianne Wood, died on 1 November 2023 aged 69 years. In these reasons I refer to the will of Ms Campbell-Wood dated 18 September 2023 as the will, and to Ms Campbell-Wood as the deceased.
By the will, the deceased appointed the plaintiff as the executor and trustee of her estate. By this proceeding, the plaintiff also applies for an order directing the probate registrar to issue (or seal) a grant of the will in solemn form to the plaintiff.
The deceased left an estate with an estimated net value of about $558,000. The deceased's assets located in Western Australia include her interest in a property at 17 Bavich Road, Armadale.
The deceased made provision for the plaintiff in the will. While she is not related to the deceased, she is a significant beneficiary. The defendants to the proceeding are the children of the deceased, who were estranged from the deceased when the deceased made the will. The defendants are beneficiaries of specific distributions under the will. There are others (including the deceased's grandchildren) who were made beneficiaries by the deceased who are not parties to this proceeding.
The defendants filed a defence and counterclaim in the proceeding claiming that the will was invalid on the basis that the deceased had lacked testamentary capacity at the time it was made. The defendants sought a declaration that the will is invalid; and a declaration that the deceased died intestate.
Following a successful mediation before a registrar of the court on 14 March 2025, the parties to this proceeding signed a heads of agreement document (described in the plaintiff's outline of submissions and in these reasons as the Compromise Agreement) that, with immediate and binding effect, recorded the parties' agreement to, relevantly, do all things required and within their power to enable the plaintiff to seek, on an undefended basis, the following orders in this proceeding:
(a)an order that the court pronounce for the force and validity of the will in solemn form of law;
(b)an order that the court direct the probate registrar to issue (or seal) a grant of probate of the will in solemn form of law to the plaintiff;
(c)an order that the plaintiff's costs of this proceeding be paid from the deceased's estate on an indemnity (solicitor and own client) basis; and
(d)an order that the defendants bear their own costs of this proceeding.[1]
[1] Affidavit of LL Burgess sworn 30 April 2025, LLB4.

By a memorandum of proposed consent orders filed on 24 March 2025, the parties sought orders from the case management registrar which included that the counterclaim be discontinued; that the defendants' defence be uplifted from the court file, or otherwise struck out by consent; and on the basis that the defendants no longer intended to take part in the proceeding and would accept any order by the court that was in line with the Compromise Agreement, and subject to any order of the trial judge, that:
(a)the action proceed on the basis that evidence in the trial be given by the plaintiff filing affidavits of the witnesses she intends to call with relevant documents in support of the relief sought; and
(b)the plaintiffs have leave to tender at that the trial of the action the filed affidavits without calling that deponents of the affidavits to give evidence orally or for cross examination.
Of the orders promoted by the parties by consent and summarised above, the case management registrar made on 27 March 2025 an order that the defence be uplifted from the court file, or otherwise struck out by consent.[2]
[2] Order 2 of the orders made on 27 March 2025.
By a further order made by the case management registrar on 13 May 2025, pursuant to the Rules of the Supreme Court 1971 (WA) O 73 r 19 the plaintiff was granted leave to set the action down for trial on an undefended basis, with evidence by way of affidavit and for the defendants to seek leave to withdraw their defence and discontinue their counterclaim.[3]
[3] Order 1 of the orders made on 13 May 2025.
On 19 May 2025 the plaintiff entered the action for trial, which trial was listed and proceeded on 19 August 2025. Counsel for the plaintiff appeared at the trial of the action. While the defendants remained represented in the action, no legal representative for the defendants appeared at the trial (presumably because of the order made on 13 May 2025 that the trial would proceed on an undefended basis).
It was therefore left to counsel for the plaintiffs to move for the order that had been sought by the consent of the parties by the memorandum of proposed consent orders filed in the action on 24 March 2025, that the counterclaim filed on 28 November 2024 be discontinued. Counsel moved for the status of the counterclaim to be addressed first, so that the trial could proceed on an undefended basis.[4]
[4] ts 4 (19 August 2025).
Counsel for the plaintiff noted that the discontinuance of the counterclaim had been agreed by the parties and recorded at cl 2(b) of the Compromise Agreement;[5] had been recorded in the memorandum of proposed consent orders filed on 24 March 2025; and that the defendants' legal representative had acknowledged to counsel shortly before the trial that the defendants still stood by the desire to seek leave to discontinue, to allow the trial to proceed.[6] In the circumstances it was ordered that the counterclaim be discontinued.
[5] ts 4 (19 August 2025); affidavit of LL Burgess sworn 30 April 2025, LLB4 (page 8).
[6] ts 4 (19 August 2025).
As was the desire of the parties, the trial proceeded on an undefended basis. The court had the benefit of receiving in advance of the trial an outline of submissions.[7] For the reasons that follow, I am satisfied that the will was duly executed by the deceased. I am also satisfied that the deceased had testamentary capacity at the time she executed the will, that she knew and approved the contents of the will, and that she intended the document to be her will.
[7] Plaintiff's outline of submissions filed 5 May 2025.

Evidence

The evidence at trial was by affidavit. The following affidavits were read:
(a)the affidavit of scripts sworn by the plaintiff on 25 February 2025, to which the plaintiff annexed a copy of the will;
(b)the affidavit of scripts sworn by the first defendant on 19 March 2025 (in which the first defendant deposed to being the son of the deceased and to not having in his possession either an original or any other scripts made by the deceased);
(c)the affidavit of scripts sworn by the second defendant on 25 March 2025 (in which the second defendant deposed to being the daughter of the deceased and to not having in her possession either an original or any other scripts made by the deceased);
(d)the affidavit of scripts sworn by the third defendant on 22 March 2025 (in which the third defendant deposed to being the daughter of the deceased and to not having in her possession either an original or any other scripts made by the deceased);
(e)the affidavit sworn by the plaintiff on 30 April 2025, to which she annexed a copy of the deceased's death certificate, a statement of the deceased's assets and liabilities as at the date of her death, and a copy of the Compromise Agreement made on 14 March 2025;
(f)the affidavit sworn by Gerdon Ashleigh Sitoy Campos, a solicitor employed by JK Legal, on 2 May 2025 (being the solicitor who drafted and witnessed the execution of the will, the statutory declaration and other documents made by the deceased); and
(g)the affidavit sworn by Sian Isabella Wilkinson, a receptionist employed by JK Legal, on 2 May 2025 (being a witness to the execution of the will, and an enduring power of attorney and enduring power of guardianship concerning the deceased).
Mr Campos also annexed to his affidavit a medical certificate dated 15 September 2023 concerning the capacity of the deceased, which was signed by Dr Shazia Qureshi of Champion Drive Medical Centre and which incorporated a completed Standard Mini-Mental State Examination test of the same date; a copy of the will; and a copy of the statutory declaration made by the deceased on 19 September 2025.
In light of a concern that had been raised by the case management registrar as to the parties having included reference to the Compromise Agreement in their memorandum of proposed consent orders filed on 24 March 2025, at the trial of the action the court was assured by counsel for the plaintiff that the parties to the mediation had consented to the Compromise Agreement being admitted into evidence.[8]
[8] ts 8 - 9 (19 August 2025). See also Supreme Court Act 1935 (WA) s 71(3)(a).

Applicable principles

Counsel for the plaintiff referred to the recent decision of Lemonis J in Allen v Quinn [2025] WASC 2, and to his Honour's summary of the relevant legal principles. In the disposition of this matter, I have adopted and applied the principles there outlined, and reproduce with gratitude that summary here.[9]
[9] Allen v Quinn [15] - [25].
The probate of a will may be granted in common form or in solemn form. There is a significant difference between the two. A grant of probate in common form is revocable. On the other hand, the circumstances in which a grant in solemn form may be revoked are limited.[10]
[10] Wheatley v Edgar [2003] WASC 118 [18].
The proof required to obtain a grant in solemn form differs to that required for a grant in common form. That difference still applies where a compromise has been reached. In this respect, E M Heenan J stated in Wheatley v Edgar:[11]
… 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 but, for solemn form to be decreed sufficient evidence to satisfy the minimum requirements for validity must be adduced and that this will require, at least, proof of due execution. This is entirely consistent with the other cases so far examined. There is also the significant observation that, whether or not there should be a decree in solemn form by the court in the event of a compromise will also depend on the circumstances of the particular case.
It is in this context that the provisions of RSC O 73, r18 and the acknowledged power for a court to grant probate in the event of a discontinuance, come to be examined. Clearly enough the rule recognises the power of the court to make a grant in the event of the discontinuance of part or all of an action for proof in solemn form, whether of the will propounded by the plaintiff or of some other will propounded on a counterclaim. However, whether the grant which might then be made should be a grant in solemn form or in common form would seem to depend on the circumstances of the individual case and, in particular, whom the grounds alleged for challenging the validity of the will propounded, the availability of evidence sufficient to prove due execution and at least raise a presumption of testamentary capacity in the absence of evidence to the contrary.
[11] Wheatley v Edgar [26] - [27].
In Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786, Lindsay J made the following observations:[12]
… if all interested parties appear before the Court or are demonstrated to have been given sufficient notice of the proceedings to be bound by any determination of the Court, the Court may have greater latitude than otherwise would be the case on an assessment of the evidence upon which a determination about a testator's testamentary intentions, if any, is to be made.
…
In the interests of the due administration of justice the Court may acquiesce in a procedural process in which selective notice is taken of some, and not other, evidence in order to accommodate an application for a solemn form grant in which all adversarial interests acquiesce. It is because of this possibility that the essential character of a solemn form grant cannot, for all purposes, be defined by reference to an evidentiary standard alone.
The Court reserves a right to act expediently in the interests of the administration of justice: eg, Palin v Ponting [1930] P 185 at 188, applying Gornall v Mason (1887) 12 PD 142. It does not, and it is not required to, apply in every case a rigorous requirement, for a grant in solemn form, that it have no notice, in fact, of evidence casting doubt on the validity of an instrument propounded as the deceased's last will. Where it is proper and reasonable to do so, it can, in the interests of justice and the due administration of an estate, proceed on the basis of a formal notation of evidence tending to prove the validity of an instrument, allowing parties to discount other lines of inquiry.
[12] Estate Kouvakas; Lucas v Konakas [251], [262] - [263].
In order to establish that proof of the will should be pronounced in solemn form, it is necessary for the propounding party to establish due execution of the will. It is also necessary to establish that the deceased had testamentary capacity to make the will at the time of execution, knew and approved of the contents of the will and intended that the document they executed was to be their will.[13] These requirements are often described by the summary terms, due execution, testamentary capacity, knowledge and approval and testamentary intention.
[13] Fisher v Kay [2010] WASCA 160 [82].
Relevantly, due execution is established if the will is signed by the deceased in the presence of two witnesses present at the same time, who then sign the will attesting that the deceased signed it in their presence. That attestation needs to occur in the deceased's presence.[14]
[14] Wills Act 1970 (WA) s 8. This is not the only manner in which due execution can be established under s 8.
It is sufficient for the purposes of this case to observe that the applicable test as to testamentary capacity has been summarised as follows:[15]
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.
[15] In the Will of Wilson (1897) 23 VLR 197, 199 (Hood J). See also Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277, 283 (Dixon J).
In making this assessment, regard is had to the dispositions made by the will and the extent to which the will provides for those persons who were the objects of the deceased's affection during their life.
In respect of the question of age, in Scattini v Matters [2004] QSC 459, Muir J said:[16]
Great age is a factor which will normally suggest the exercise of particular vigilance when considering testamentary incapacity (Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558.) It does not follow, however, that even a marked decline in a testator's intellectual capacity through advancing age establishes lack of testamentary capacity
[16] Scattini v Matters [96]. See also Seeley v Back [2005] NSWSC 68 [20], Donato v Mangravite, Estate of Donato [2005] NSWSC 488 [30].
Knowledge and approval of the contents of a will is the traditional language used to convey that the will represents the testamentary intentions of the deceased. Testamentary capacity, and knowledge and approval, are distinct concepts. Testamentary capacity is a necessary, but not sufficient, condition for the establishment of knowledge and approval.[17]
[17] Veall v Veall [2015] VSCA 60 [173] (Santamaria JA, with whom Beach and Kyrou JJA agreed).
Testamentary intention is that the deceased intended the document they executed was to be their will. As was observed by Lemonis J, it would be a rather unusual circumstance where testamentary capacity and knowledge and approval were established, but testamentary intention was not. However, the circumstances as a whole still need to be looked at in assessing whether testamentary intention is established.[18]
[18] Allen v Quinn [24].
There are a number of presumptions that can ordinarily be availed of in cases seeking to prove a will. A presumption of due execution arises where a will regular on its face bears the signatures of a testator and two witnesses.[19] Where a will has been duly executed, three presumptions arise: testamentary intention, testamentary capacity and knowledge and approval of the contents of the will.[20] These presumptions may however be displaced.
[19] Fisher v Kay [83].
[20] Fisher v Kay [85].

Disposition

In the disposition of the matter, I had regard to the following.

The will

The deceased died on 1 November 2023. The cause of death recorded in the death certificate is metastatic melanoma (months).[21] The will, dated 18 September 2023, was made about six weeks before the deceased's death by Mr Campos, a solicitor employed by JK Legal.

Terms of the will

[21] Affidavit of LL Burgess sworn 30 April 2025, LLB2.

The deceased left an estate with an estimated net value of about $558,000.[22] The main asset of the estate is the deceased's interest in the Bavich Road, Armadale property, which interest was estimated to have a value of $442,500 as at the date of the deceased's death.[23] The will provided for the appointment of the plaintiff as executor and trustee, and if the plaintiff were to refuse or be unable to act, provided for the appointment of Kristy Michelle Shewchuk. By way of distributions, par 8 of the will provided for the executor to hold the deceased's estate on trust:
[22] Affidavit of LL Burgess sworn 30 April 2025, LLB3.
[23] Affidavit of LL Burgess sworn 30 April 2025, par 18, LLB3.
(a)to pay any funeral and testamentary expenses, probate and death duties, income tax, capital gains tax and other like duties payable of, or in relation to, the deceased's estate (cl 8.1);
(b)to give the deceased's share of the real property at Bavich Road, Armadale to the plaintiff (cl 8.2);
(c)to give any motor vehicle owned by the deceased as at the date of her death to a named granddaughter of the deceased (cl 8.3);
(d)to give all the deceased's photographs, photograph albums and family history paperwork to the first defendant (cl 8.4);
(e)to give all of the deceased's books to the second defendant (cl 8.5);
(f)to give the deceased's music and CD collection to the third defendant (cl 8.6);
(g)to give $5,000 to each of the deceased's grandchildren (cl 8.7);
(h)to give $15,000 to the deceased's friend, Sarah Inkster (cl 8.8);
(i)to divide all of the deceased's jewellery and items of personal adornment equally between the deceased's grandchildren (cl 8.9);
(j)to give $2,000 to Saving Perth Animals from Euthanasia Incorporated (SAFE) (cl 8.10);
(k)to give $2,000 to the Bali Orphan Day Centre to be held on trust to be used for the education expenses of a named child (cl 8.11); and
(l)subject to the above, to give the residue of the deceased's estate to the plaintiff, and if the plaintiff were to predecease the deceased, to Ms Shewchuk (cl 8.12).

The will also provided that where a person referred to in subparagraphs 8.2, 8.3, 8.4, 8.5, 8.6, 8.7, 8.8, and 8.9 predeceased the deceased or died before attaining a vested interest leaving children who attain their majority, then those children, on attaining their respective majorities, would take equally the share which their parent would otherwise have taken.

Preparation of the will

At paragraph 27 of the submissions filed on behalf of the plaintiff prior to trial, the findings said to be open on the affidavits of Mr Campos and Ms Wilkinson were set out. The following draws heavily from that summary of the evidence before the court.
In September 2023 the will was prepared by Mr Campos, who at that time was a restricted practitioner employed by JK Legal, having been admitted to practice in October 2021.

Meeting on 7 September 2023

On 7 September 2023 Mr Campos first met the deceased at her home regarding the preparation of her will, an enduring power or attorney and an enduring power of guardianship. The plaintiff greeted Mr Campos on his arrival, and then left him in a room alone with the deceased so that they could talk in private.
The plaintiff informed Mr Campos that she wished to make a will, an enduring power of attorney instrument and an enduring power of guardianship instrument. She disclosed that she had recently been diagnosed with brain cancer and did not expect to live much longer, and emphasised the urgency of completing the documents.
Mr Campos checked with the plaintiff that she understood what each of the documents requested meant. Mr Campos' evidence was that he then explained the nature of the documents in detail, and from his recollection, the deceased nodded and agreed with him, which indicated to him that the deceased had understood what he had said.
In the course of that meeting, Mr Campos began taking the deceased's instructions for the will. The deceased disclosed to Mr Campos that she had a strained relationship with her children and had not spoken to them in eighteen years. She expressed a desire to leave her children some gifts but not a substantial amount. Mr Campos recorded that the possibility of that causing a challenge to the will was then discussed with the deceased.
Mr Campos continued taking the deceased's instructions, and the deceased's articulated wishes were for her share of her home to go to the plaintiff; her car to go to her granddaughter; for certain personal effects to be distributed to her children; and for cash gifts to be made to her grandchildren and certain charities. As to the residue of the estate, that was to be decided at a later date.
After concluding her instructions for the will, Mr Campos recommended to the deceased that she complete a statutory declaration in which she explained the reasons for not making more substantial provision in her will for her children. Mr Campos deposed that he then recorded in his notes the deceased's explanation.
Mr Campos deposed that the deceased then reiterated the urgency of completing the documents due to her brain cancer diagnosis. He also deposed that he requested that the deceased obtain a medical certificate confirming her capacity to make a will, enduring power of attorney instrument and enduring power of guardianship instrument, and that the deceased agreed to his request.
The deceased then further instructed Mr Campos that she wanted to appoint the plaintiff as her primary attorney and guardian, and Ms Shewchuck the substitute. Additional instructions were given as to the deceased's treatment preferences.
Mr Campos' meeting with the deceased on 7 September 2023 concluded with him explaining to the deceased the next steps, which included arranging for a second witness. It was Mr Campos' evidence that the deceased 'knew what she wanted done' and that she gave him clear instructions.[24] Mr Campos then left the deceased's home.
[24] Affidavit of GAS Campos sworn 2 May 2025, par 18.
Mr Campos began drafting the requested documents the next day (that is, on 8 September 2023).

Communication on 11 September 2023

On 11 September 2023 the plaintiff sent an email communication to Mr Campos expressing concern that the Bali charities nominated by the deceased as beneficiaries might be scams. Mr Campos obtained the deceased's telephone contact details from the plaintiff and telephoned and spoke directly with the deceased later that day.
On 11 September 2023 Mr Campos informed the deceased of the plaintiff's communications and asked if the deceased was comfortable with him communicating with the plaintiff. The deceased agreed. The deceased then provided Mr Campos with revised instructions about the charitable beneficiaries to be included in her will and also instructions for an additional cash gift in favour of her neighbour, Ms Inkster.
In the course of that call, the deceased mentioned a doctor's appointment confirming her capacity, but acknowledged that Mr Campos might need an official letter, which she agreed to obtain. Mr Campos further deposed that the deceased was quite clear with her instructions to him.

Communication on 14 September 2023

Mr Campos telephoned the deceased again on 14 September 2023 to seek further instructions about how the residue of her estate was to be distributed. The deceased instructed Mr Campos that she wanted the plaintiff to receive the residue of her estate and if not, then it was to be given to Ms Shewchuck.

Meeting on 15 September 2023

Mr Campos met with the deceased for a second time at her home in Armadale on 15 September 2023, taking with him the draft documents. He was again greeted by the plaintiff on arrival, but then met alone with the deceased.
Mr Campos deposed that during the meeting the deceased showed him a medical certificate confirming her capacity and the results of a Standard Mini-Mental State Examination test. Mr Campos annexed to his affidavit the medical certificate that he was shown by the deceased.[25]
[25] Affidavit of GAS Campos sworn 2 May 2025, par 24, GC-1.
The medical certificate is dated 15 September 2023, and was signed by Dr Shazia Qureshi MBBS, FRACGP, under cover of a Champion Drive Medical Centre letterhead. The document records as follows:
15 September 2023
TO WHOM IT MAY CONCERN
Mrs Sarah Campbell-Wood

7/01/1954
This is to Certify that the above patient is mentally competent to make her will and to take part in making decision for power of Attorney and Guardianship.
The results of a Standard Mini-Mental State Examination test recorded the deceased as the name of the patient, the deceased's date of birth, the initials of the examiner, and the date of the test (being 15 September 2023). The deceased's test score is recorded as 30/30.
Mr Campos then went through the draft documents with the deceased, and explained each of the relevant provisions of the draft will, enduring power of attorney instrument and enduring power of guardianship instrument. Mr Campos' evidence is that he particularly noted the specific gifts that the deceased wanted to incorporate in her will. Mr Campos then asked the deceased if the draft documents, as explained, were in accordance with her wishes, and the deceased confirmed to him that they were.
The deceased also reviewed the statutory declaration and requested the incorporation of an additional sentence, which Mr Campos described in his affidavit. Mr Campos further deposed to his belief that the deceased understood the nature of the statutory declaration, as after having read the document, she wanted him to make an amendment, so as to make her expressions in the statutory declaration more clear.
Mr Campos' second meeting with the deceased on 15 September 2024 concluded with him making arrangements to return the following Monday (18 September 2023) with final documents ready for signing.

Meeting on 18 September 2025

Ms Wilkinson is a receptionist employed by JK Legal. Her duties include the witnessing of wills, enduring powers of attorney and enduring powers of guardianship for clients.
On 18 September 2023 Mr Campos and Ms Wilkinson together attended the deceased's home in Armadale. They were greeted on their arrival by the plaintiff. Mr Campos and Ms Wilkinson waited for the deceased to finish a home consultation with her doctor before meeting with the deceased in the patio area of the deceased's home, without any other persons present. The plaintiff and Ms Shewchuck were present but remained inside.
The deceased requested a further change to the statutory declaration document that Mr Campos has prepared, which change was described by Mr Campos in his affidavit. Mr Campos informed the deceased that he would need to return later for her to sign the amended version of the statutory declaration.
Ms Wilkinson recalls that Mr Campos explained the documents to the deceased and the deceased confirmed the documents to be in accordance with her wishes.
Mr Campos' evidence differs to that of Ms Wilkinson in that he deposed that as he had explained the will, the enduring power of attorney instrument and enduring power of guardianship instrument during their previous meeting, the deceased did not wish to review the documents again and proceeded to sign the documents.
The deceased signed the will, an enduring power of attorney instrument and an enduring power of guardianship instrument in the presence of Mr Campos and Ms Wilkinson. Afterward, Mr Campos invited the plaintiff and Ms Shewchuck, who were inside, to come out to the patio area to accept their appointments as the deceased's attorneys and guardians. The plaintiff and Ms Shewchuck then signed their respective sections of the enduring power of attorney instrument and enduring power of guardianship instrument. Mr Campos and Ms Wilkinson then witnessed their signatures on the documents.

Meeting on 19 September 2023

Mr Campos returned to the deceased's home the following day, on 19 September 2023, to deliver the amended statutory declaration document as requested. The deceased signed the amended statutory declaration in Mr Campos' presence. He does not recall anyone else being present at the time. The statutory declaration signed by the deceased on 19 September 2023 records the reasons for the deceased not making more substantial provision in her will for each of her (now adult) children. It is three pages in length and is divided into sections relevant to each child. It is not necessary to record here those reasons.

Observations by Mr Campos and Ms Wilkinson

As is recorded above, Mr Campos described in his affidavit his observations and impressions of the deceased in the course of his interactions with her from 7 to 19 September 2023.
At par 32 of his affidavit, Mr Campos further deposed as follows:
Throughout my interactions with Sarah, I observed no concerns regarding her capacity. She appeared to understand her decisions clearly and was direct about her instructions in relation to her wishes. Receiving the medical certificate and the MMSE [Standard Mini-Mental State Examination test] with a perfect score further reassured me of her capacity to make the Will, Enduring Power of Attorney, and Enduring Power of Guardianship.
At par 10 of her affidavit, Ms Wilkinson deposed that there was nothing in the way that the deceased acted which indicated that she was confused or did not understand what Mr Campos said to her.

Due execution

As is noted above, relevantly, due execution of a will is established if it is signed by the deceased in the presence of two witnesses present at the same time, who then sign the will attesting that the deceased signed it in their presence. That attestation needs to occur in the deceased's presence.[26]
[26] Wills Act 1970 (WA), s 8. This is not the only manner in which due execution can be established under s 8.
The plaintiff says that the court can be satisfied that the will was duly executed. Having regard to the will itself and to the evidence of Mr Campos and Ms Wilkinson, I am so satisfied.
As is noted above, three presumptions arise from due execution: testamentary intention, testamentary capacity, and knowledge and approval of the contents of the will. In this case, those presumptions arise by reason of the due execution of the deceased's will and no evidence was adduced to rebut those presumptions.
Further, and in any event, I am satisfied from the evidence read that the deceased had the necessary testamentary intention, testamentary capacity and knowledge and approval of the contents of the will. I address each below.

Testamentary capacity

I accept that the presumption of testamentary capacity that applies by reason of due execution has not been displaced by any evidence to the contrary.
In so finding, I am cognisant that on 28 November 2024, the defendants filed a defence and counterclaim claiming that the will is invalid on the basis that the deceased lacked testamentary capacity at the time it was made and seeking, by way of counterclaim, a grant of letters of administration on the basis that the deceased died intestate. Having entered into the Compromise Agreement, that claim is abandoned. While on notice that a counterclaim had been pleaded (and it could reasonably be inferred that there had been a sufficient basis for counsel to sign that pleading), before the court there was no evidence sufficient to raised a suspicion as to testamentary capacity that had to be allayed for there to be a grant in solemn form.
While the plaintiff relies upon the presumption of testamentary capacity, it is the plaintiff's position that, in any event, the court can be satisfied that the deceased had testamentary capacity at the time that she made the will by reason of the following matters on the evidence:[27]
(a)poor physical health is not of itself suggestive of any mental impairment;[28]
(b)the letter from Dr Qureshi made clear that despite being in the advanced stages of terminal brain cancer, the deceased's doctor was confident to certify that the deceased was competent to make a will;
(c)there is no basis to doubt Dr Qureshi's medical opinion, particularly in light of the Standard Mini-Mental State Examination test result sheet which recorded a 30/30 score;
(d)the detailed affidavit from Mr Campos and the fact that he met with the deceased on no less than four separate occasions and spoke by telephone with the deceased on two other occasions. The plaintiff says that Mr Campos took instructions in a careful and methodical manner, which instructions were not rushed but rather took place over a series of separate discussions with the deceased. Read alongside the statutory declaration, the plaintiff contends that it is clear that the deceased put a great deal of thought into how she wanted her estate to be distributed;
(e)Mr Campos took steps to ensure that the plaintiff was not present during each of his meetings with the deceased; and
(f)the will, read with the statutory declaration, is rational on its face and through a series of considered and structured clauses, makes different provision for each of the plaintiff, the defendants, the grandchildren of the deceased, and certain charities. Read with the statutory declaration, the plaintiff contends that there is nothing on the face of the will to suggest it is the product other than of a competent and understanding maker.[29]
[27] Plaintiff's outline of submissions filed 5 May 2025, par 30.
[28] Plaintiff's outline of submissions filed 5 May 2025, par 30(a), referring to Attwell v Morgan [2019] WASC 182 [85], which cites with approval Bailey v Bailey (1924) 34 CLR 558.
[29] Plaintiff's outline of submissions filed 5 May 2025, par 30(f), citing Blain v Kelsall [2023] WASC 358 [19].
I proceed cognisant that in the interests of the due administration of justice, the court may acquiesce in a procedural process in which selective notice is taken of some, and not other, evidence in order to accommodate an application for a solemn form grant in which all adversarial interests acquiesce.[30] Having weighed all of the evidence read, I am satisfied that the deceased had testamentary capacity at the time that she executed the will.
[30] Estate Kouvakis; Lucas v Konakas [262].
In so finding, I particularly weighed in the balance those matters emphasised by counsel for the plaintiff (reproduced at [72] above); the evidence of Mr Campos and Ms Wilkinson as to their respective recollections as to the presentation of the deceased; that Mr Campos would not have witnessed the deceased's will if he had held a concern as to the deceased's testamentary capacity; and that when regard was had to the matters described by the deceased in the statutory declaration, the will was a rational one.

Knowledge and approval, and testamentary intention

I accept that the presumption of testamentary intention, and knowledge and approval of the contents of the will that applies by reason of due execution has not been displaced by any evidence to the contrary.
In any event, I am satisfied that there is sufficient and cogent evidence, particularly that of Mr Campos, to be satisfied that the deceased had the requisite testamentary intention, and had knowledge of and approved the contents of her will.
The deceased was clear and consistent with her instructions as to the terms of the will. She took additional time to provide instructions as to whom she would bequeath the residue of her estate.
The will is consistent with the statutory declaration prepared contemporaneously on behalf of the deceased. The evidence was that the deceased was careful in her consideration as to who ought inherit her estate, and with her choice of language in the statutory declaration which was prepared as an ancillary document on the advice of Mr Campos, by requesting that amendments be made. While the deceased elected to bequeath the majority of her estate to certain friends and not her children, the will reflected and embodied a rational disposition in the circumstances that were described by the deceased in her statutory declaration.
I have found that the deceased had testamentary capacity, which is a necessary precondition to the establishment of knowledge and approval. Further, the will was prepared on the deceased's instructions. The terms of the will was explained to the deceased. While there was some difference in account as to the whether Mr Campos explained the will to the deceased on 18 September 2023,[31] Mr Campos' evidence as to the explanation given on 15 September 2025 is clear in relation to the same.[32]
[31] Affidavit of GAS Campos sworn 2 May 2025, par 29; affidavit of SI Wilkinson sworn 2 May 2025, par 9.
[32] Affidavit of GAS Campos sworn 2 May 2025, par 25.
I am satisfied that the deceased knew and approved the contents of the will at the time that she executed it, and that she intended the document to be her will.

Conclusion and costs

As was submitted on behalf of the plaintiff, from the affidavits filed by the parties and the deceased's death certificate, it is clear that:[33]
(a)the parties are not aware of any other will made by the deceased;
(b)the deceased was single at the time of her death;
(c)the deceased did not marry or divorce in the period between making the will and dying;
(d)if the will is not admitted to probate, the only alternative grant of representation that could be made is a grant of letters of administration pursuant to the Administration Act 1903 (WA); and
(e)as the surviving children of the deceased, the defendants are the only persons entitled in the distribution of the deceased's estate if it were administered pursuant to the Administration Act.
[33] Plaintiff's outline of submissions filed 5 May 2025, par 11.
The defendants are parties to this proceeding and promote the pronouncement of the will in solemn form, and the making of a grant of probate in favour of the plaintiff, in the context of an agreed compromise of the proceeding.
There are others named as beneficiaries under the will who are not parties to this proceeding.[34] That does not affect my assessment as to whether I should make the orders sought. What is sought is an order that the court pronounce for the force and validity of the will in solemn form, in circumstances where the Compromise Agreement does not contemplate their being any disruption to those further beneficiaries receiving their entitlements under the will.
[34] Affidavit of LL Burgess sworn 25 February 2025, LLB1 (page 5).

The plaintiff has deposed that if she were to obtain a grant of probate, she will administer the estate of the deceased according to law, and in accordance with the agreement reached with the defendants (as in documented in the Compromise Agreement).[35]
[35] Affidavit of LL Burgess sworn 30 April 2025, par 21.
In circumstances where a compromise has been agreed as between the parties, the defence has been withdrawn and the counterclaim discontinued, for these reasons, I am satisfied that the orders promoted by the plaintiff ought be made.[36]
[36] Plaintiff's minute of proposed orders filed 5 May 2025.
The costs orders promoted by the plaintiff are consistent with the agreement reached as between the parties as recorded in the Compromise Agreement,[37] and the making of such orders will not disturb the distributions to other beneficiaries under the will (who were not joined to the proceeding). It is appropriate to make the costs orders in the form promoted.
[37] Affidavit of LL Burgess sworn 30 April 2025, LLB4 (page 9).

Final orders

For these reasons, orders will be made in the following terms:
1.The court pronounces the force and validity of the last will of the late Sarah Campbell-Wood (also known as Sally Dianne Wood) (the deceased) dated 18 September 2023 in solemn form of law (the Will).
2.A probate registrar shall issue a grant of probate of the Will in solemn form of law to Lynda Lee Burgess, the executor appointed under the Will.
3.The plaintiff's costs of the action, and any additional costs of and incidental to proving the Will, be paid out of the deceased's estate on a solicitor and own client basis.
4. The defendants bear their own costs of the action.
5. There be liberty to apply.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CR
Associate to the Honourable Justice Strk
22 AUGUST 2025