Gallotti v Gallotti-Brown - [2025] WASC 384

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   GALLOTTI -v- GALLOTTI-BROWN [2025] WASC 384
CORAM:   SOLOMON J
HEARD:   19 JUNE 2025
DELIVERED          :   17 SEPTEMBER 2025
FILE NO/S:   CIV 1537 of 2023
BETWEEN:   ROBERT GALLOTTI
Plaintiff
AND
WARATAH MARGOT GALLOTTI-BROWN
Defendant

Catchwords:

Probate - Application for revocation of grant of probate - Note written on will discovered after grant - Whether deceased intended document to constitute a codicil to her will - Part X of the Wills Act 1970 (WA) - Informal wills - Court's power to revoke probate

Legislation:

Administration Act 1903 (WA), s 29, s 47
Wills Act 1970 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	In Person
Defendant	:	In Person

Solicitors:

Plaintiff	:	In Person
Defendant	:	In Person

Cases referred to in decision:

Campton v Hedges [2016] NSWSC 201
Cronan v Coates [No 2] [2024] WASC 184
Estate of Wilson (1991) 24 NSWLR 334
Hatsatouris v Hatsatouris [2001] NSWCA 408
In the Estate of Masters (Deceased); Hill v Plummer; Plummer v Hill (1994) 33 NSWLR 446
In the Will of Lamont [1881] VLR IPM 86
Kemp v Findlay [2024] NSWSC 902
Lindsay v MsGrath [2015] QCA 206
National Australia Trustees Ltd v Fazey [2011] NSWSC 559
Newman v Brinkgreve; Estate of Verzijden [2013] NSWSC 371
Oreski v Ikac [2008] WASCA 220
Peek v Wheatley [2025] NSWSC 554
Re Banning; Ex Parte Banning [2018] WASC 313
Re Gillard [1949] VLR 378
The Estate of Rogers v Rogers [2009] WASC 358
Young v Martin [2018] WASCA 206

SOLOMON J:

Overview

This matter is an application to revoke a grant of probate and to grant probate in respect of a different document. The application for the new grant of probate is in respect of a professionally prepared will that was duly witnessed and executed. However, the document also contained a subsequent handwritten note in Italian, on an inside page of the document. The note was signed but not witnessed. The note on its face purported to alter the terms of the executed will. The plaintiff's application is for the executed will - as altered by the note - to be accepted as constituting the testator's will.

Background

Angela Alfonsa[1] Gallotti (Mrs Gallotti) was born in 1930 and died on 6 January 2020. She had three children; Rosemary, born in 1963, the defendant, Waratah, born in 1965, and the plaintiff, Robert, born in 1967. Without meaning any disrespect, I shall refer to the children by their first name to avoid any confusion.
[1] Throughout these reasons, Mrs Gallotti's middle name is spelled 'Alfonsa', consistent with the grant of probate dated 24 February 2020. The alternative spelling, 'Alphonsa', is used in the parts of this judgment that directly quote Mrs Gallotti's will documents and statutory declaration dated 2 June 2011, in which that spelling appeared.
Mrs Gallotti left a will dated 2 June 2011 (Will). As will be explained in more detail, in the Will, Mrs Gallotti appointed Waratah as her executor and trustee. The Will directed that Rosemary be given $65,000 and that the remainder of Mrs Gallotti's estate be given to Waratah, or in the event that Waratah was no longer alive, to Waratah's children.[2]
[2] Plaintiff's Trial Bundle, 17 June 2024, 8 (Exhibit C); Defendant's Trial Bundle, 18 June 2024, 7 (Exhibit D).
On the same day that she signed the Will, Mrs Gallotti also made a statutory declaration before a Justice of the Peace (who was also a witness to the Will). In her statutory declaration, Mrs Gallotti explained her decision to gift her residuary estate to Waratah. In short, Mrs Gallotti explained that Waratah had been of great assistance to her and had looked after her as her carer for many years. In the statutory declaration, Mrs Gallotti also explained her decision to leave the gift of $65,000 to Rosemary and that she had already given $75,000 to Robert.[3]
[3] Exhibit C, 8; Exhibit D, 10 - 11.
On 24 February 2020, probate of the Will was granted to Waratah as the executor appointed under the Will.[4]
[4] Exhibit C, 7; Exhibit D, 15.
On 23 May 2023, Robert and Rosemary commenced proceedings against Waratah by writ of summons. The writ seeks revocation of the grant of probate of the Will to Waratah, and the grant of probate of a will dated 15 June 2011 including an informal codicil pursuant to pt X of the Wills Act 1970 (WA) (Wills Act).
A statement of claim was filed on 28 September 2023. Amended statements of claim were lodged on 26 August 2024 and 15 October 2024. For the purposes of these reasons, the relevant statement of claim is the statement of claim dated 15 October 2024 (Statement of Claim).
The Statement of Claim pleads the existence of a duly executed will dated 15 June 2011 with a handwritten note in Italian which was signed, but was neither dated nor witnessed. That document became Exhibit A. The Statement of Claim seeks relief that the court revoke probate of the Will[5] and that 'the Will [of Angela Alfonsa Gallotti] dated the 15th June 2011 with the informal codicil written by Angela Alfonsa Gallotti be accepted into probate as an informal codicil in solemn form under the Wills Act 1970 Part 10 Section 34'.[6]
[5] Statement of Claim, 15 October 2024 [6] (Statement of Claim).
[6] Statement of Claim [7].
In substance, this application is for revocation of the Will and a grant of probate of Exhibit A on the basis that it included the handwritten Italian note, to take effect as a codicil, pursuant to the provisions of the Wills Act governing informal wills.
Waratah's further amended defence of 28 October 2024 (Defence) denies that Exhibit A should be admitted to probate and Waratah denies that the note in Italian should be given force as a testamentary instrument under pt X of the Wills Act.[7]

Rosemary's withdrawal

[7] Defence [5] - [6].

It is convenient to record at this point that on 10 June 2025, Rosemary's claim was dismissed. This followed Rosemary's advice to the court that she no longer wished to participate in the proceeding. At a directions hearing on 10 June 2025, Rosemary confirmed to the court directly that she did not wish to maintain her claim or continue to participate in the proceedings. Orders dismissing her claim were made.[8]
[8] Orders of Solomon J, 10 June 2025.
At directions hearings on 5 June 2025 and 10 June 2025 the court also made it clear that upon Rosemary's withdrawal from the proceedings, Robert could no longer expect that the evidence that Rosemary had foreshadowed giving when she was a continuing plaintiff would be available, unless Robert himself called Rosemary as a witness. In addition, Robert could no longer rely upon the submissions or documents that Rosemary had indicated she was intending to put forward at the trial, unless Robert himself advanced those matters. Robert confirmed that he understood that was the case.[9]
[9] Transcript, Gallotti v Gallotti-Brown, Supreme Court of Western Australia, 5 June 2025, 29 - 30; Transcript, Gallotti v Gallotti-Brown, Supreme Court of Western Australia, 10 June 2025, 39.
The trial took place on 19 June 2025.

The Will

The Will admitted to probate was brief. It contained the following provisions:[10]
1.I REVOKE all former Wills and Testamentary Dispositions previously made by me AND I DECLARE this to be my last Will and Testament.
2.I APPOINT my daughter WARATAH MARGOT GALLOTTI as Executrix and Trustee of this my Will ("my Trustee").
3.I GIVE DEVISE AND BEQUEATH to my Trustee all of my estate both real and personal and of what nature or kind of which I may die seized possessed or entitled and wheresoever situate UPON TRUST and subject to the powers and provisions hereinafter declared and contained concerning the same ("my Trust Estate").
4.FROM my Trust Estate I DIRECT payment of my just debts, funeral and testamentary expenses as soon as possible after my death and SUBJECT to the following clauses hereof I DIRECT that my Trustee shall hold my Trust Estate both as to capital and income UPON TRUST to be distributed as follows:
(a)SIXTY FIVE THOUSAND DOLLARS ($65,000.00) to my daughter ROSEMARY; and
(b)The remainder of my Trust Estate to my daughter WARATAH for her own use absolutely and should she predecease me, such remainder to those of her three children ELLEESE, SHANA and BRANDON as survive me as tenants in common in equal shares.
[10] Exhibit C, 8; Exhibit D, 8.
The original of the Will was a three-page bound document that appeared to have been professionally prepared. It had the name and details of a law firm on the front cover; Alexanders Lawyers of Irwin Chambers, Irwin Street Perth. The document was single-sided with the back of each page left blank. The document was obviously prepared by Alexanders Lawyers.[11]
[11] Defendant's Further Amended Submissions, 20 January 2025 [1.1].
Gaps were left in the execution section for the handwritten insertion of the day and month, followed by the year 2010 in typed form. In the usual way, space was provided for the signature of the testator and for the signature and details of the witnesses. The Will bears the signature of Angela Gallotti and the signatures and details of the witnesses in the correct places. The typed '2010' was struck out by pen and '2011' was inserted by hand. The correction appears to have been made using the same pen as the signatures. The correction was countersigned by Mrs Gallotti and initialled. It is not possible to discern the initials. The day and date were inserted by hand and read '2^ndday of June 2011'.[12]
[12] Exhibit C, 9; Exhibit D, 9.
The first witness to the Will was Paul N Levi, a Justice of the Peace. It was Mr Levi before whom Mrs Gallotti also swore the statutory declaration of 2 June 2010. The second witness was Jorinde Francesca Hart who gave her occupation as 'Administrator'.

Exhibit A - the subsequent document and the Italian note

Exhibit A was a virtually identical document to the Will. It was bound in exactly the same way and its typed content was identical including the formatting and the name and details of the law firm. The only difference in the typed content was that the year '2011' was in typed form rather than '2010'. The handwritten '2011' and strike out of the typed '2010', therefore, do not appear on Exhibit A. The day and month inserted by hand were 'FIFTEENTH' and 'JUNE'. The document was signed by Mrs Gallotti and two witnesses in the spaces left for those signatures on the last (third) page. Mrs Gallotti and the two witnesses also signed the front side of each of the first two pages.[13]
[13] Exhibit C, 13; Exhibit D, 14.
The first of the two witnesses to Exhibit A was Jeanette Lynda Harries. The second witness was the same Jorinde Francesca Hart who witnessed the Will.[14]
[14] Exhibit C, 13; Exhibit D, 14.
It is clear that a different pen was used to sign Exhibit A from that used to sign the Will.
On the inside of the second page of Exhibit A there is a handwritten note in Italian. That is the note that is central to these proceedings. It is not dated. It is signed with Mrs Gallotti's signature. However, Mrs Gallotti's signature on the handwritten note is markedly less distinct in its lettering than the signature on the execution page in either the Will or in the formal execution block of Exhibit A.
It was agreed that the following is an accurate translation of the handwritten note:
THESE ARE MY
LAST INTENTIONS (WILL)
I LEAVE TO ROBERT MY SON
THE SUM OF 45 THOUSAND
DOLLARS, THEN WARATAH
WILL GIVE this
MONEY LITTLE BY LITTLE
PAYING FOR [THINGS] LIKE
LIGHTING AND GAS AND OTHER
THINGS,
THEN EVERYTHING that
THERE IS IN this
HOUSE GOES TO ROSEMARY
AND ROBERT
INCLUDING JEWELLERY AND
IF THERE IS ANY MONEY IN [THE]
BANK
I Hope
THAT I HAVE EXPLAINED MYSELF
YOUR MUM
(Angela Gallotti)
The agreed translation was contained in Exhibit C. The translation is certified by a NAATI Certified Practitioner.
Upon close inspection of the translation, it appeared to me that the word '(WILL)' appearing in the translation was not in the original document and may have been the translator's own interpretive addition or notation. The court wrote to the parties on 3 September 2025 to ask them if they agreed that the word '(WILL)' was not in the original. Both Robert and Waratah responded and confirmed that each agreed with that conclusion. Accordingly, I find that the Italian word for '(WILL)' was not in the original handwritten document.

The draft and another note

Robert also tendered into evidence Exhibit B. This was not a document that was in either Robert's trial bundle or referred to in his written outline or submissions.
Exhibit B was a document in the same format and style as the Will and Exhibit A. It had the same content. The document had the word 'DRAFT' stamped in red in multiple places on each of the three pages. The document was stapled, not bound and it contained older staple holes. The typed year in the execution block was 2010. This is the same typed year as the Will. On the inside of the second page of Exhibit B there was a similar handwritten note in Italian. This note too was signed by Mrs Gallotti. Unlike the handwritten note on Exhibit A, it was hand‑dated 16-10-2013. It was agreed by the parties that the note was very similar to the handwritten note in Exhibit A. Robert explained in his evidence that the terms of the note were the same, 'The only difference being the amount was to be given on a monthly basis other than a lump sum'.[15] Another difference in Exhibit B is that the note contained on the bottom towards the lefthand side the words 'NON LITICATE', which Robert said in his evidence meant 'do not fight'.[16] Exhibit B itself was not otherwise signed or dated.

Robert's evidence

[15] Transcript, Gallotti v Gallotti-Brown, Supreme Court of Western Australia, 19 June 2025, 39 (ts).

[16] ts 39.

Robert gave evidence on his own behalf. Robert did not give any evidence about the circumstances in which his mother created the note on either Exhibit A or Exhibit B.
When I asked Robert if he was able to give any evidence about the circumstances in which his mother made the note, he gave evidence in general terms that his mother 'had always said she would leave something for me'.[17] Robert thought that his mother had said something to that effect in 2018. Robert then gave evidence in fairly vague terms about a discussion he said he had with his mother about getting a loan, and her apparent insistence that something would be left to 'cover myself' and Rosemary.[18]
[17] ts 37.
[18] ts 37.
Robert's evidence was that his mother did not discuss the note with him directly. He then went on to say 'she told me that it was in the bedhead. She told me there was another will and that it was in the bedhead'.[19] That was said to be in 2018. Robert accepted there was no reference to that discussion in his witness outline.
[19] ts 38.
Robert's evidence was that he came to be in possession of both Exhibit A and Exhibit B when they were sent to him by Rosemary in 2022 or 2023, well after the grant of probate, which had occurred in February 2020.[20] In cross examination Robert said he was given a copy of just the note written in Exhibit A in 2021. At first, he said 'at a guess' that it was early 2021. When I told Robert that he ought not to guess, he said it was mid-2021. He then said it was either February or March 2021.[21]
[20] ts 37.
[21] ts 41 - 42.
Robert's evidence was that he last spoke to his mother in June or July 2019. Robert accepted that he did not attend his mother's funeral.[22]
[22] ts 46 - 47.
I did not find Robert's evidence reliable. He was prone to give fairly vague, self-serving evidence about matters that had not previously been asserted by him or contained in his witness outline. Consistently with his submissions and the focus of his cross examination of Waratah, Robert's evidence was plainly coloured by his antipathy towards Waratah. His approach was more concerned with portraying Waratah as a villain than with historical accuracy.
I find that Robert had no knowledge of the circumstances in which the handwritten note in Italian in Exhibit A was created. This much was conceded.[23] On his own evidence, he had no knowledge of the note at all until August 2020, after Mrs Gallotti's death.[24] I do not accept Robert's evidence that he had a discussion with his mother in which Mrs Gallotti told him about the note or another will located in the bedhead in 2018. Nor do I accept Robert's evidence that Mrs Gallotti told Robert that he would be left something in her will.[25]
[23] ts 38.
[24] ts 60.
[25] ts 37 - 38.
It is clear that both Exhibit A and Exhibit B found their way into Robert's possession after Mrs Gallotti's death but well before the issuing of these proceedings in May 2023. They were both given to him by Rosemary.[26] It is clear that Rosemary and Robert had formed some alliance against Waratah in respect of Mrs Gallotti's estate. It was no doubt in that context that Rosemary provided the originals of Exhibit A and Exhibit B to Robert and that Robert and Rosemary jointly commenced these proceedings.

Waratah's evidence

[26] ts 37 - 38.

Waratah also gave evidence on her own behalf. Waratah gave the following evidence regarding the Will.
From 1998, when she returned to Perth, Waratah was her mother's primary carer as Mrs Gallotti's husband had passed away a considerable time before. Mrs Gallotti had been diagnosed with diabetes and eye damage and was unable to drive. Waratah took her mother to appointments from that time until her mother's death. Rosemary had been living, and still resides, in Melbourne since 1991. Robert was living in Perth.[27]
[27] ts 64.
In 2010, Mrs Gallotti moved to a residence in Scarborough. At around that time, Mrs Gallotti told Waratah that she wanted to make a will. Mrs Gallotti herself chose Alexanders Lawyers who had offices in Irwin Street in Perth. Waratah did not know how or why her mother chose that law firm. Waratah took her mother to the lawyers, as Mrs Gallotti did not drive. Her mother met with the lawyer or lawyers separately to discuss the preparation of the will. Waratah was not present during the discussion.[28]
[28] ts 62 - 63.
The will was prepared, and two execution copies were sent to Mrs Gallotti.[29]
[29] ts 63.
Exhibit D included a copy of a letter from Alexanders Lawyers to Mrs Gallotti dated 5 April 2011. The letter enclosed the 'Will for singing together with Will signing instructions'. The letter also enclosed 'the Statutory Declaration document which was prepared on your instructions' and asked Mrs Gallotti to have that signed and kept in a 'safe place together with your Will'.[30]
[30] Exhibit D, 2.
Waratah told her mother that arrangements needed to be made to get the wills signed. Of the two execution copies of the will, provided by Alexanders Lawyers, Mrs Gallotti retained one of the copies and gave the other one to Waratah. Waratah arranged with her mother for the signing to take place at the rooms of an optometrist in the vicinity. Waratah, who was working during the day, told her mother she had arranged for a friend to pick her up. Waratah also told Mrs Gallotti to bring the copy which Mrs Gallotti had kept to the optometrist. When they met at the optometrist, Waratah had brought along her copy, but Mrs Gallotti had forgotten to bring her copy. Mrs Gallotti and the witnesses signed the copy that Waratah had brought with her which became the Will. As noted at [17], one witness was Mr Levi. The other witness, Ms Jorinde Hart appears to have been a work colleague of Waratah's. Waratah retained the signed Will.[31]
[31] ts 64.
Arrangements were later made for Mrs Gallotti to sign the copy that she had retained. That was done on 15 June 2011. Waratah arranged for two witnesses, Ms Jeanette Harries and Ms Jorinde Hart to come to Mrs Gallotti's home where the will was signed. Waratah wrote the date on the will that day, and identified the date on Exhibit A as being in her handwriting. Waratah's evidence was that her mother kept that copy of the will. Waratah was not aware of any handwritten note on that copy of the will.[32]
[32] ts 65.

Waratah's evidence was that on the day that Mrs Gallotti passed away, she and Rosemary were both at their mother's house. Waratah gave evidence that the copy of the document signed on 15 June 2011 remained at her mother's house and was in a yellow envelope. On the day that Mrs Gallotti died, Rosemary 'grabbed the envelope'.[33] Waratah did not look at the document inside the envelope. She remained unaware of any handwritten note and thought that the document in the yellow envelope at her mother's house was identical to the Will. Waratah was content for Rosemary to take the yellow envelope, and she told Rosemary she would ask for it if she needed it.
[33] ts 64.
Waratah was presented with Exhibit A at the trial. She said that was the first time she had seen the original of the document with the handwritten note. Waratah confirmed in her evidence that Exhibit A was the document that was signed on 15 June 2011, to which she had added the date, but her evidence was that at that time, it did not contain any handwritten note. Waratah could not explain why Exhibit A had the year 2011 in type whereas the Will had 2010 in type - other than to say that that is how the documents were received from Alexanders Lawyers.[34]
[34] ts 65.
Waratah's evidence was that her mother never spoke to her or mentioned anything about the handwritten note 'or anything different to the will at all'.[35]
[35] ts 66.
Waratah gave some evidence of the last year or so of her mother's life. Waratah said that her mother's last outing was in March 2019 but that she had really stopped going out in 2018. Mrs Gallotti had an operation in 2018, after which she was reliant upon daily dialysis, which she often refused, and which led to complications resulting in her being 'in and out of hospital'.[36] In the final six months leading to her death on 6 January 2020, she was much weaker.
[36] ts 67.
Waratah gave evidence that in July 2019 she went away for a 10‑day break and her sister Rosemary came to Perth to care for their mother. When Waratah returned, her mother appeared to be angry about Rosemary's visit. There was some evidence during the trial about a possible conversation between Rosemary and her mother about the will and a recording of that conversation. There was no admissible evidence from which any conclusions could be drawn about those matters.[37]
[37] ts 35 - 37.
Following her mother's death on 6 January 2020, Waratah applied for probate of the Will, which was granted on 24 February 2020. Waratah's evidence was that Rosemary must have been aware of that because Waratah discussed it with her and told her about the grant of probate at around that time.[38]
[38] ts 61.
Waratah's evidence was that the first she learned of the handwritten note in Exhibit A was when Rosemary told her about it on the phone in August 2020. The first time she saw the note was when a copy of it was sent to her with a letter from Rosemary dated 6 May 2021.[39] The letter is instructive. It is a hostile letter that raises a number of matters, but in particular demands satisfaction of Rosemary's entitlements under the Will, in particular the bequest of $65,000. The letter's second paragraph begins 'I also remind you that you must follow the terms of the Will.'
[39] Exhibit F.
The provision by Rosemary of the handwritten Italian note in the context of the letter of May 2021 is curious, because the handwritten note purports to alter the very entitlements which Rosemary was demanding, under the Will, in that same letter. It would not appear possible to reconcile Rosemary's insistence on fulfilment of the terms of the Will with a belief that Mrs Gallotti intended her testamentary wishes to be reflected in the handwritten note. Rosemary chose not to maintain her claim. Nor was she called to give evidence, which might have presented an opportunity to address that curiosity. The evidence established that Rosemary was, at least until she sent the document to Robert well after their mother's death, the custodian of Exhibit A. And until recently, Rosemary was a joint plaintiff with Robert seeking to give the handwritten note testamentary force. The evidence established that Rosemary received, in large part if not entirely, the benefit of the legacy provided by the Will and then subsequently issued these proceedings seeking revocation of the Will.
In cross examination, Waratah was challenged as to why she did not submit the will signed on 15 June 2011 for probate rather than the Will, given that she must have known that the 15 June 2011 will was a later document. Waratah explained that Rosemary had the will of 15 June 2011 in her possession, and as far as Waratah was concerned, they were identical. Waratah went on to say that at the time of applying for probate she did not remember the respective dates of the two will documents. In effect, her evidence was that she simply proceeded on the basis that she understood them to be identical and she lodged for probate the copy which she had retained, given that the other one was identical and was with Rosemary in Melbourne. She did not then direct close attention to her recollection of the different dates.[40]
[40] ts 72 - 73.
Waratah gave evidence that she had fully administered the estate in accordance with the Will and paid the entitlements provided for by the Will.[41] It appears that was done before Robert and Rosemary issued these proceedings in May 2023. Exhibit C included a letter from Waratah to Rosemary dated 17 May 2021 in which Waratah advised that she had distributed the funds in accordance with the Will.[42]
[41] ts 66.
[42] Exhibit C, 20.
I found Waratah's evidence to be straightforward. Allowing for the passage of time and its inevitable impact on memory, I accept Waratah's evidence as honest, reasonably accurate, and reliable.

Ms Harries' evidence

The final witness was Jeanette Harries. Ms Harries gave evidence by video. Her evidence was that she was present for the signing of the will on 15 June 2011. Ms Harries' evidence was that at the time the will was signed on 15 June 2011, it did not contain any handwritten note. Ms Harries did not know anything about the handwritten note.[43]
[43] ts 77 - 78.
Ms Harries gave her evidence in a credible and straightforward fashion. I accept her evidence.

Findings

On the basis of the oral and documentary evidence before the court, I make the following findings.
Waratah was Mrs Gallotti's primary carer for some considerable time prior to her death and particularly in the year of Mrs Gallotti's more acute declining health leading to her death.
In the years leading to her death, Waratah was the child with whom Mrs Gallotti had the most contact and the child who, by a considerable margin, provided the most care to Mrs Gallotti. In contrast Robert, who lived in Perth, had a strained relationship with his mother. That was certainly the case in the final years of her life. On Robert's own evidence, he did not speak to his mother after June or July 2019.[44] It must have been apparent to him at that time that his mother was extremely unwell. Robert did not attend the funeral. It is probable that Robert's strained relationship with his mother extended some years prior to that. Rosemary lived in Melbourne. Other than her visit in 2019, there was no evidence as to the regularity of her visits to Perth to see her mother. Other than Waratah's reference to her mother's anger following Rosemary's visit in 2019, there was no evidence of a strained relationship between Mrs Gallotti and Rosemary.
[44] ts 46.
I accept Waratah's evidence that in about 2010 or 2011, Mrs Gallotti expressed to Waratah a desire to prepare her will. Mrs Gallotti herself selected the law firm Alexanders Lawyers for that purpose. Waratah took Mrs Gallotti to Alexanders Lawyers in 2011 to prepare her will. Mrs Gallotti met alone with the lawyer or lawyers to discuss her will. The lawyer or lawyers prepared a will that reflected Mrs Gallotti's instructions and sent two execution copies of that will to Mrs Gallotti. At the same time, Alexanders Lawyers prepared a statutory declaration. The content of the statutory declaration reflected Mrs Gallotti's instructions.
It is probable, and I so find, that before sending the execution copies of the will, Alexanders Lawyers sent Mrs Gallotti a draft of the will. By one means or another Mrs Gallotti communicated her approval of the draft to Alexanders Lawyers. Following that communication, Alexanders Lawyers sent to Mrs Gallotti the two final copies for execution.
Waratah was the person who assisted Mrs Gallotti to organise her affairs. It was natural for Mrs Gallotti to rely upon Waratah to organise the execution of her will. Waratah organised for the two copies of the will to be duly executed and witnessed. Mrs Gallotti gave one execution copy to Waratah and kept one herself. Waratah told Mrs Gallotti to bring along her copy for signing.
Mrs Gallotti executed the Will on 2 June 2011, but only with the copy that Waratah had retained and brought along for execution as Mrs Gallotti had forgotten to bring her copy along. On 2 June 2011 and in front of the one witness to the Will, Mr Levi, a Justice of the Peace, Mrs Gallotti also confirmed and signed the statutory declaration.
That statutory declaration stated as follows:[45]
[45] Exhibit D, 11 - 12.
1.I Angela Alphonsa[46] Gallotti, Retired of 56C Deanmore Road, Scarborough in the State of Western Australia swear this Statutory Declaration to explain why I have prepared my Will and left my Estate the way I have.
[46] See footnote 1 regarding the alternative spellings of Mrs Gallotti's middle name.
2.I have three children Rosemary, Waratah and Robert.
3.My daughter Waratah has for many years been of great assistance to me.
4.In 1998 due to complication that arose from my Diabetic condition I have been unable to drive. From that date on Waratah has taken me to all my Doctors appointments, taken me shopping and taken me on outings. Without her I have no idea where I would be. I certainly would not have had the wonderful life that I have had.
5.Even after Waratah obtained fulltime employment in May of 2007 she still continued to travel from Scarborough to Parkwood where I lived and back again to take me to my appointments for blood tests and with all other Doctors and Specialists and for shopping on weekends.
6.In 2008 my daughter Waratah purchased a property situated at 56B Deanmore Road Scarborough with a view to my moving closer to live near her so that she didn't have quite so much travel time spent looking after me. I wasn't comfortable to move at that time.
7.However, by 2009 I had thought about it and I indicated to Waratah that I would like to move to live close to her. She then built a property at the back of 56B Deanmore Road, Scarborough in 2009 and she was kind enough to customise the home to suit my needs including putting the main living and bedrooms on the ground floor. The cost of this construction was $475,000.00.
8.In 2010 I sold my Parkwood property and moved into 56C Deanmore Road, Scarborough and paid $400,000.00 off the mortgage as that was the cost of the home.
9.At this same time knowing that my son Robert Gallotti was having difficulties meeting his mortgage payments I paid $75,000.00 to him to go off his mortgage. At the same time I also paid $10,000.00 to my daughter Rosemary.
10.The $75,000.00 paid to my son Robert Gallotti paid out his mortgage so that he didn't lose his home and I also gave him an extra $1,500.00 in cash.
11.I feel that to even things up I need to give my daughter Rosemary $65,000.00 and hence the gift to her in my Will to achieve that result.
12.My daughter Rosemary has lived in Melbourne since 1991 and owns her home with her husband.
13.I am very close to all of my children but particularly to my daughter Waratah who has always been very special in looking after me and I know that she will continue to be my carer until I die.
14.It is for this reason that apart from the gifts in my Will I wish to leave the remainder of my Estate absolutely to my daughter Waratah and should she die before me I want that remainder to be divided equally as tenants in common between those of her three children ELLEESE, SHANA and BRANDON.
I accept that Waratah and therefore Mrs Gallotti thought it was necessary or appropriate to execute both the copies of the will that Alexanders Lawyers had sent to her mother.[47] Waratah organised for two witnesses to attend her mother's home on 15 June 2011 where the second copy was duly executed and witnessed.
[47] ts 63.
When the will was executed on 15 June 2011, it did not contain any handwritten note.
It is likely in my view, and I find that, on the basis of those experiences, Mrs Gallotti knew and appreciated that the preparation of a binding testamentary instrument usually involved a level of skill that she did not possess and also required a degree of formality in its execution. It is likely and I find that Mrs Gallotti appreciated that an effective testamentary instrument needed to be witnessed. Based on her experience, I also consider it more likely than not and I find that Mrs Gallotti had some appreciation of what was meant by a 'draft', that is, a document not in its in final form.
There were two executed wills. Waratah retained custody of the copy executed on 2 June 2011 and Mrs Gallotti kept the second copy executed on 15 June 2011 at her home.
Sometime later, perhaps considerably later, Mrs Gallotti made a handwritten note in Italian on the draft will, that is, Exhibit B and a separate but similar handwritten note on the copy of the will that she had signed on 15 June 2011, that is Exhibit A. The note on the draft was dated 13 October 2013. There is no date on the note on Exhibit A, but given their similarity it is possible that they were written at a similar time. It is not possible to know. Other than that, there was no evidence at all regarding the circumstances in which either of the notes were written.
I find that the handwritten note in Exhibit A was written and signed by Mrs Gallotti at a time that was not proximate to 15 June 2011 when she signed the execution block of Exhibit A. It was at a later time, but it is not possible to tell when that was. Based on a comparison of the signatures, I find that Mrs Gallotti was in a materially weaker physical condition when she signed the handwritten note in Exhibit A.
There was no evidence before the court that Mrs Gallotti referred to or discussed the handwritten note in Exhibit A with anyone, including any of her children.
On the day of Mrs Gallotti's death, Exhibit A remained in her house in a yellow envelope. It was taken that day by Rosemary, who maintained possession of it in Melbourne. I find that Rosemary was likely aware of the handwritten note on Exhibit A very soon after her mother's death at the very latest, if not from some prior time. Rosemary was aware of, but did not disclose the handwritten note in Exhibit A to Waratah, nor possibly to Robert, before Waratah obtained a grant of probate of the Will in February 2020.
In February 2020, Waratah applied for probate of the Will. Rosemary was aware at that time or very soon thereafter that Waratah had applied for probate of the Will. Rosemary was also aware that Waratah had not applied for probate of the version of the will with the handwritten Italian note that Rosemary had retained.
I find that Waratah applied for probate of the Will honestly believing that the other executed copy of the will was in identical terms and without turning her mind to the precise sequence and dates of the signing of the two copies that had occurred almost nine years before.
Rosemary did not disclose the existence of the note to Waratah until August 2020, and did not provide her a copy until May 2021, well over a year after probate. In the meantime, Rosemary had pressed Waratah to receive the full benefit of her entitlements under the Will, including in her letter to Waratah of 6 May 2021.[48]
[48] Exhibit C, 23.
Robert was aware of the handwritten note in Exhibit A from February or March 2021 at the latest. Rosemary provided the originals of Exhibit A and Exhibit B to Robert at some later stage but, at least in respect of Exhibit A, well before the issue of these proceeding in May 2023.
By 21 May 2021, Waratah had paid out the gifts required by the Will.

Legal principles

Section 8 of the Wills Act provides as follows:
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.
Notwithstanding the formalities prescribed by s 8, pt X of the Wills Act permits the court, in particular circumstances, to accept a document as a valid testamentary instrument even though the formal requirements have not been met.
Section 32(1) of the Wills Act defines the meaning of the word 'document'. That is not an issue here; there is no doubt that the handwritten note in Exhibit A is a document.
Section 32(2) provides:
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.
Section 32(3) provides:
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.
In Oreski v Ikac [2008] WASCA 220 (Oreski), Newnes AJA made the following observations:
In Hatsatouris v Hatsatouris [2001] NSWCA 408 [56], Powell JA (with whom Priestley and Stein JJA agreed) identified three questions of fact that arise under the New South Wales equivalent to s 34, those questions being:
1.was there a document?
2.did the document purport to embody the testamentary wishes of the deceased?
3.did the evidence satisfy the court that, either at the time the document was brought into being or at some later time, the deceased, by some words or act, demonstrate that it was their intention that the document should, without more on his or her part, operate as his or her will?[49]
…
It is, however, important always to bear in mind that while it is necessary that the document in question sets out the deceased's testamentary intentions, that is not of itself sufficient. Section 34 does not enable any document which expresses the deceased's testamentary wishes to be admitted to probate. The document must be intended to be the legally operative act which disposes of the deceased's property upon their death; that is, it must have been intended by the deceased to have present operation as his or her will. A person may have set down in writing their testamentary intentions but not intend that the document be operative as a will. Thus, for example, it will not be sufficient if it is a document intended to record gifts or intended gifts during the deceased's lifetime, or to be a note of instructions, or a draft will or a 'trial run': In the Estate of Masters (Dec), Hill v Plummer (1994) 33 NSWLR 446 at 455; Equity Trustees Ltd v Levin [2004] VSC 203. As Young CJ in Eq pointed out in Macey v Finch [2002] NSWSC 933 [23], even where a draft will has been prepared in accordance with the deceased's instructions, it is quite common for testators to change their mind after giving instructions or on seeing the draft will.
It is therefore of fundamental importance that the person seeking to propound the document establish that the deceased, by some words or act, demonstrated an intention that, without more, the document should have effect as his or her will.[50]
[49] Oreski [52].
[50] Oreski [54] - [55].

Hatsatouris v Hatsatouris [2001] NSWCA 408 (Hatsatouris) was dealing with the equivalent New South Wales legislation, which was in somewhat different terms. Nevertheless, the Court of Appeal in Oreski said expressly that there was no material difference between s 34 of the Wills Act and its New South Wales counterpart.[51] After the decision in Oreski, pt X of the Wills Act was amended to take the form in s 32 set out above.[52] The substance of the provisions remain the same, so far as the issues in this proceeding are concerned. Courts in this jurisdiction have continued to apply the principles in Hatsatouris and Oreski.[53]
[51] Oreski [53].
[52] See [79] of these reasons.
[53] See Young v Martin [2018] WASCA 206 at [14] and most recently Cronan v Coates[No 2] [2024] WASC 184 at [24].
In In the Estate of Masters (Deceased); Hill v Plummer; Plummer v Hill(1994) 33 NSWLR 446 at 452 Kirby P said:
[B]y the requirement that the document which, by definition embodies the testamentary intentions of a Deceased person, should be described as constituting 'his or her will' the legislature plainly drew a distinction between those documents of testamentary intentions which constituted the Deceased's Will and those which did not. I regard the distinction thus made as one between a generalised homily as to the testamentary intentions … and a document which, although falling short on formalities sufficiently evidences that by it the Deceased intended to govern the disposition of his or her property after death.
Often it will be difficult to tell into which category a propounded document falls. Section 18A(2) of the Act permits extrinsic evidence to given which may sometimes help. But in this case, as in most, that evidence will contain elements pointing in conflicting directions.
In that case, Mahoney JA expressed the same sentiment as follows:[54]
[T]here is in principle a distinction between a document which merely sets out what a person wishes or intends as to the way his property shall pass on his death and a document which, setting out those things, is intended to cause that to come about, that is, to operate as his will.
[54] In the Estate of Masters (Deceased); Hill v Plummer; Plummer v Hill(1994) 33 NSWLR 446, 455.
There is ample authority cautioning that great care must be taken in determining whether the deceased intended the document, without more, to form their will. Many people write out proposals for their wills on pieces of paper headed 'will' but often these are no more than present thoughts, not testamentary intentions and certainly not intended to be wills.[55]
[55] Kemp v Findlay [2024] NSWSC 902 at [147]; Peek v Wheatley [2025] NSWSC 554 at [128] (Peek) citing Windeyer AJ in National Australia Trustees Ltd v Fazey [2011] NSWSC 559.
In assessing the intention of the deceased and in particular whether it is established that the deceased intended the document to constitute and operate as a will, the court should have regard to the totality of events in order to determine the party's intention. In that regard, the remarks in Peek at [135] are apposite:
Since the critical question is, what was the Deceased's intention at the time she placed her signature on what is, after all, no more than a note as to the manner in which she wished her Will to be changed, it seems to me that what is required is an approach similar to that which is called for when the Court is called upon to determine whether an informal document was intended to constitute, or record, but a limited consensus or concluded agreement — in such cases it is not only legitimate, but almost inescapable, that one should have regard to the totality of events in order to determine what was the party's intention.

Consideration

Turning to the three elements referred to in [81] above, it is plain that the note in Exhibit A was a document, and that on its face it embodied Mrs Gallotti's testamentary wishes. The substantive issue for determination is the third issue: whether the evidence established that Mrs Gallotti intended that the document should, without more on her part, operate as her will.
It should first be observed that I have found there is no evidence outside the note itself of the circumstances in which it was created.[56] It could have been created anytime between June 2011 and when Mrs Gallotti died in January 2020. Beyond what can be discerned from the note itself, there is nothing known of Mrs Gallotti's physical or mental condition at the time she wrote the note, or the circumstances that may have moved her to write it, beyond evidence of the general circumstances that prevailed during that period.
[56] See [27] and [67] of these reasons.
As is often the case, there were no doubt matters of some significance that transpired but that have not been the subject of evidence. The palpable animosity between the parties bespeaks a range of historical and unresolved issues and incidents that have plagued the family dynamic. In these matters however, the court cannot conduct an enquiry at large seeking to probe into the torrid history of family disputation. The court can only come to its decision by drawing reasonable inferences and conclusions from the evidence brought before it. As in nearly every case, a deeper resolution of the human conflict lying behind the proceeding is not within the ambit of the court's capacity or function.
There are factors indicating that the handwritten note was intended by Mrs Gallotti to operate, without more, as her will.
First, the note was written on a page of an executed will. That is a significant indication that the author intended it to take effect in the same way as the will itself. In that regard, this case may be distinguished from other cases, where the note was written on a separate document.
Secondly, the note was signed. Ordinarily, that will carry an implication of an intention of testamentary effect.[57]
[57] See for example Campton v Hedges[2016] NSWSC 201 [61]; Lindsay v MsGrath[2015] QCA 206 [19]; Newman v Brinkgreve; Estate of Verzijden [2013] NSWSC 371 [104].
In my assessment the placement of the note on an executed will and the signing of the note are two factors weighing significantly in favour of establishing the requisite intent. In the absence of a consideration of all the circumstances, I may have been open to the conclusion that those factors are sufficient to demonstrate that Mrs Gallotti intended the handwritten note to operate as her will.
However, these factors are not conclusive. The signature and placement of the note may have reflected a passing view or merely a statement of intention. As discussed at [85], that is not enough. It is necessary for the court to be persuaded that Mrs Gallotti intended the note to take effect as her will.
I turn, therefore, to other factors and circumstances.
First, Mrs Gallotti was familiar with the professional expertise that ordinarily attended the preparation of a document that was to take effect as a will. On the evidence before the court, it was Mrs Gallotti herself who initiated the preparation of her will and sought the assistance of a law firm to do so. In 2011, Mrs Gallotti chose the lawyers. Mrs Gallotti attended the lawyers' offices and met alone with the lawyer or lawyers to give instructions.[58] She received a draft and most likely communicated her approval of its contents to the lawyers.
[58] ts 62 - 63.
Secondly, Mrs Gallotti must have been generally aware that some formalities were required for the execution of a document to take effect as her will. In particular, she must have been aware that it needed to be witnessed. Mrs Gallotti twice attended a specially-arranged meeting to have her will executed and witnessed. On the first occasion an arrangement was made for her to attend a professional office with a Justice of the Peace. On the second occasion, witnesses made special arrangements to come to her home.[59]
[59] ts 64.
Thirdly, the effect of the handwritten note was a significant departure from the dispositions in the remainder of Exhibit A, the Will and the sentiments expressed in the statutory declaration. The handwritten note reflects a fundamental shift in Mrs Gallotti's intentions and attitude to family members. There is nothing in the evidence that suggests such a departure. On the contrary, it appears her relationship with Waratah continued to be close, if not more dependant, while her relationship with Robert appears to have deteriorated, or at least not improved. It cannot be denied that Mrs Gallotti wrote the note and that, presumably, it reflected her thinking at the time. But it is quite another thing to conclude that she wrote it intending it to take effect as her will in a manner that was entirely inconsistent with her previous will and her statutory declaration, and when that was curiously out of step with the evidence of her ongoing relationship with her children.
Fourthly, the fact that Mrs Gallotti wrote and signed an almost identical note on a document marked 'DRAFT' with a red stamp suggests, in my view, that it is unlikely she intended a note of that nature to take effect as a will. As I found above, Mrs Gallotti was likely familiar with the meaning and function of a 'draft'. The fact that Mrs Gallotti dated and signed a note on a document expressly marked as a draft, suggests that her making and signing of such a note may be a less significant indicator of her intention than might otherwise appear to be the case.
Fifthly, I have found that there is no evidence Mrs Gallotti had discussed the note with any of her children.[60] In the circumstances, I consider that weighs against a conclusion that she intended the note to take effect as her will.
[60] ts 66 - 67.
Sixthly, although the position that emerged from the evidence was far from clear, it appeared that Rosemary knew more about the existence of the note than others. Yet, Rosemary continued to insist that the Will be enforced. It appears that Rosemary did not consider Exhibit A to have embodied her mother's intentions in a such a manner as to take effect as a will.
The parts of Exhibit A that are identical to the provisions in the Will are not struck out. Of itself, that weighs against an inference that Mrs Gallotti intended the handwritten note to take effect as her will because the content of the note is irreconcilable with the content of those provisions in Exhibit A. These provisions are identical with the Will and were left intact by Mrs Gallotti.
That also presents a more fundamental barrier to Robert's application.
Robert's application seeks revocation of the Will and probate granted in respect of Exhibit A. Exhibit A contains identical provisions to those that appear in the Will and it contains the handwritten note. Yet the handwritten note is irreconcilable with the balance of Exhibit A. Robert's application is for the handwritten note to take effect as a codicil to the original typed version of Exhibit A. Robert's application can only be understood as an application to revoke probate of the Will and for a grant of probate of Exhibit A but with the provisions of the handwritten note to take effect as a codicil and operate in such a way that they prevail over the balance of Exhibit A to the extent of any inconsistency.
Seventhly, Ms Gallotti did not strike out those provisions of the Will that were inconsistent with or superseded by the handwritten note. She made no reference in the note to its inconsistency with the will she had signed and on which she was writing the note.[61]
[61] Exhibit A, 3.
Relatedly, Robert's application is for the grant of probate of Exhibit A with the handwritten note. Robert's burden is not merely to persuade the court that Mrs Gallotti's intention was for the handwritten note, of and by itself, to take effect as her will. The onus is also to persuade the court that Mrs Gallotti intended that Exhibit A should take effect as Mrs Gallotti's will and the document is to so operate on the basis that where the handwritten note conflicts with the balance of Exhibit A, the terms of the handwritten note ought to prevail. That is, Robert seeks to demonstrate that Mrs Gallotti's intention was for the handwritten note to take effect as a codicil so as to alter the terms of the otherwise operative provisions of Exhibit A.
The plaintiff, Robert, bears the onus of persuading the court that Mrs Gallotti had the intent required by the Wills Act for his application to succeed. Taking account of all the circumstances, on balance I am not persuaded that the evidence establishes that Mrs Gallotti intended the handwritten note to take effect as her will.

Revocation of probate

I should add some remarks about revocation of probate. That is because, independently of my conclusion regarding Mrs Gallotti's intent, in this matter there are additional factors that may weigh against the revocation of probate.
First, on the evidence, Waratah has, in good faith, paid out the legacies required by the Will.[62] In that regard, I note that s 47 of the Administration Act 1903 (WA) (Administration Act) provides:
All persons making or permitting to be made any payment or transfer bona fide upon any probate or administration granted under the authority of this Act shall be indemnified and protected in so doing, notwithstanding any defect or circumstance whatsoever affecting the validity of such probate or administration not then known to such person.
[62] Exhibit C, 20.
In the circumstances, there may be little if any utility in the revocation of probate.
Secondly, the evidence establishes that both Rosemary and Robert were aware of Exhibit A well before they issued these proceedings. At least in respect of Rosemary, it is most likely that she was aware of Exhibit A before or at the same time as Waratah's application for probate of the Will. Thereafter, on the evidence before the court Rosemary pressed for, and received her entitlements under the Will before then issuing these proceedings together with Robert.[63]
[63] Exhibit C, 19.
In that context, it is appropriate to observe that the authorities establish that the court's power to revoke a grant of probate is a discretionary power. The factors referred to above weigh against the exercise of the discretion.
Historically, the power to revoke a grant of probate has long been characterised as a discretionary power.
In the interesting case of In the Will of Lamont [1881] VLR IPM 86 (Lamont), a revocation of probate was sought by the next of kin on the basis that Mr Lamont had written his will under the pernicious influence of a Mrs Jackson, who was apparently possessed of supernatural powers that manifested in episodes of mesmeric spiritualism that appear to have been a fashion of the era. The case includes lengthy passages from the eloquent exposition of an English professor of physiology who observed, among other things, that it had become 'impossible to go into any kind of society, literary or scientific, professional or lay, gentle or simple, without finding a large proportion of intelligent and truthful persons, such as would be regarded as trustworthy on all other subjects' who subscribe to views that are largely repugnant to common sense.[64]
[64] Lamont (91).
Whilst the passages provide useful confirmation of the historical tendency for even decent and intelligent people to subscribe to repugnant theories, its relevance to this matter lies in the case's explanation of the history of the power to revoke a grant of probate. The origin of the jurisdiction is to be found in the Ecclesiastical Court in England. Having traced some of the history of the jurisdiction in England and Australia, Molesworth J observed that the revocation of a grant of probate 'is a matter of discretion depending on the circumstances in each case'.[65]
[65] Lamont (98 - 99).
Similarly, in Re Gillard [1949] VLR 378at 379 the revocation of a grant of probate or administration was said to be 'a matter of discretion'.
In Estate of Wilson (1991) 24 NSWLR 334, Powell J considered the appropriate procedure to be followed where a codicil or other instrument is discovered after a grant of probate. Powell J referred to the following authority at 338:
In the notes to s 66 of the Act appearing in Hastings and Weir, ProbateLaw and Practice 2nd ed, (1948) at 225 the learned authors record (inter alia):
A general (ie, not a limited) grant of administration will be revoked only for good cause shown. … A general grant will be revoked in the following classes of cases: —
…
(iii)where, although regularly obtained, it has become void or
inoperative through subsequent circumstances. Examples of
such cases include: —
…
(b)discovery of a later will or codicil.
Powell J then continued at (339):
More extensive statements of the English practice appear in Williams Mortimer and Sunnucks, Executors Administrators and Probate 16th ed,(1982). Thus, (at 314-315) the learned authors record (inter alia):
…
Grounds for revoking a grant
The principal grounds for revoking a grant are: (i) That it was obtained by a false or incorrect statement. (ii) That there is a supervening defect in the grant. (iii) That the grant was in effect a nullity. (iv) That the name of the deceased was wrongly stated in the grant.
1.Grant obtained by a false or incorrect statement
Examples of revocation ordered under this head are:
…
(b)Where after a grant of probate, a codicil is discovered altering or revoking the appointment of executors. In this case a new grant is made of probate of the will and codicil, but if the appointment of executors is not affected, separate probate of the codicil is granted.
Where a codicil is discovered after a grant of administration (with the will) the grant is revoked and a fresh grant of administration with the will and codicil annexed is made. …
(emphasis added)
In relation to the practice in New South Wales, Powell J observed at (340):
[T]he Notes to Pt 78, r 38 of the Supreme Court Rules 1970 appearing in Ritchie's Supreme Court Procedure (NSW) contain the following:
…
(b)Where a will has been discovered after a grant of letters of administration, or a later will after a grant of probate, or where the grant has been made pending a caveat, the original grant may be revoked. In Re Harley [1972] QWN 13, a grant of probate was revoked after discovery of a codicil to the will of which probate had been granted. A fresh grant was then made in relation to the will and the codicil.
The matter was addressed in this jurisdiction by EM Heenan J in TheEstate of Rogers v Rogers [2009] WASC 358 (Rogers). His Honour explained:[66]
By s 29 of the Administration Act 1903 (WA) it is provided that:
29.Court may revoke grant of administration
(1)Where administration of the estate of a person has been granted the Court may, at any time, upon the application of any person interested in the estate or of its own motion on the report of the Principal Registrar, revoke the administration.
It may be open to question whether or not that power is confined to grants of letters of administration made by the court, as distinct from grants of probate, because a dichotomy between such grants appears to exist in ss 3, 6 ‑ 8 and elsewhere in the Administration Act …
RSC O 73 contains the rules of court dealing with contentious probate proceedings which include any action for the revocation of a grant of probate or letters of administration.
[66] Rogers [15] - [17].
EM Heenan J continued in relation to the court's 'general statutory and inherent jurisdiction of the court to revoke grants of representation whether grants of probate or grants of letters of administration':[67]
Any narrow questions as to the extent of the probate jurisdiction of the court are resolved by the ample grant of jurisdiction upon the court contained in s 18 of the Supreme Court Act 1935 (WA) which provides:
18.Probate jurisdiction
The Supreme Court shall have 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 and its dependencies 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, and any other Act in force in Western Australia immediately before the commencement of this Act, with authority to hear and determine all questions relating to testamentary causes and matters.
There is a wide variety of circumstances under which revocation of a grant of probate or letters of administration, which have not been the subject of proof in solemn form, may be made. Broadly, these may be divided into two categories. The first being where it is discovered that there is some error which has been made in the grant of representation or where the particular grant should not have been made (for example, the discovery of a later will, or of a subsequent marriage which revoked the will in question). The second category includes revocations made necessary or desirable to ensure the due administration of the estate such as, for example, where the grantee becomes sick or disabled, or has disappeared. The ultimate purpose of the court is to ensure the due and proper administration of the estate and of the interests of the parties beneficially entitled to it ‑ see Halsbury's Laws of England (4th ed, Reissue) par 259 and Re Loveday [1900] P 154. For a detailed discussion of the various examples where revocation may be justified see Tristram & Coote's Probate Practice (29th ed) pars 17.01 ‑ 17.33 and Williams, Mortimer & Sunnucks 'Executors & Administrators of Probate' (18th ed, 2000) pars 27‑15 ‑ 12‑30.
[67] Rogers [20] - [23].

Although the issue was left open by EM Heenan J in Rogers, this was clarified in Re Banning; Ex Parte Banning [2018] WASC 313, where Vaughan J said that the court relies on its inherent jurisdiction to revoke a grant of probate rather than s 29 of the Administration Act. His Honour also explained at [34]:
The revocation of a grant of probate is equivalent to the setting aside of a court order; the power to do so is not exercised as of course or as of right. The purpose of the court's power of revocation is to ensure the due and proper administration of the estate and of the interests of the beneficiaries. But the court is cautious and sparing in the exercise of the power; it is a major step as it includes the removal of the person chosen by the deceased as the person considered suitable.
(citations omitted)
Having reviewed those authorities, the following appears to me to be the position:
(1)The court's power to revoke a grant of probate is at least an inherent power of the court;
(2)The power is discretionary;
(3)The power is exercised sparingly;
(4)However, where a subsequent will or codicil is discovered after the grant of probate, the discretionary power should ordinarily be exercised to revoke the grant;
(5)Nevertheless, the power remains discretionary. In special circumstances, in may not be appropriate to revoke a grant of probate notwithstanding the discovery of a subsequent will or codicil.
It may be that the court would not have exercised its discretion in these circumstances to revoke the grant of probate even if had been established that the handwritten note was intended to operate as Mrs Gallotti's will and took effect as a testamentary instrument under s 32 of the Wills Act. In the circumstances however it is not necessary to express a concluded view about that.

Conclusion

In light of the conclusions above regarding Mrs Gallotti's intention, the application ought to be dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
GP
Associate to the Honourable Justice Solomon
18 SEPTEMBER 2025