Khan v Khan - [2025] WASC 396

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   KHAN -v- KHAN [2025] WASC 396
CORAM:   WHITBY J
HEARD:   ON THE PAPERS
DELIVERED          :   22 SEPTEMBER 2025
FILE NO/S:   CIV 1133 of 2025
BETWEEN:   BIBI KHADIJHA KHAN
First Plaintiff
BIBI RAHEELA KHAN
Second Plaintiff
BIBI SHAKILA KHAN
Third Plaintiff
AND
MOHAMMAD AMER KHAN
Defendant
MOHAMMAD AMER KHAN
Plaintiff by counterclaim
BIBI KHADIJHA KHAN
BIBI RAHEELA KHAN
BIBI SHAKILA KHAN
Defendant by counterclaim

Catchwords:

Probate - Wills and estates - Informal will - Whether deceased intended later informal will to operate as his will - Proof of earlier will in solemn form

Legislation:

Administration Act 1903 (WA)
Rules of the Supreme Court 1971 (WA)
Will Act 1970 (WA)

Result:

Proof of 1998 Will pronounced in solemn form
Plaintiff by counterclaim appointed as administrator

Category: B

Representation:

Counsel:

First Plaintiff	:	No appearance
Second Plaintiff	:	No appearance
Third Plaintiff	:	No appearance
Defendant	:	No appearance
Plaintiff by counterclaim	:	No appearance
Defendant by counterclaim	:	No appearance

Solicitors:

First Plaintiff	:	D'Angelo Legal
Second Plaintiff	:	D'Angelo Legal
Third Plaintiff	:	D'Angelo Legal
Defendant	:	Haydn Robinson
Plaintiff by counterclaim	:	Haydn Robinson
Defendant by counterclaim	:	In person

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

Fisher v Kay [2010] WASCA 160
Hatsatouris v Hatsatouris [2001] NSWCA 408
Mott v Hill [2021] WASC 43
Oreski v Ikac [2008] WASCA 220
Re Lapalme; Daley v Leeton (2019) 60 VR 71
Riches v McInnes [2010] WASC 298
West Australian Trustee Executor and Agency Company Ltd v Holmes [1961] WAR 144
Wheatley v Edgar [2003] WASC 118

WHITBY J:

Shah Alam Khan (deceased) was born on 30 June 1944 and died on 3 August 2014. The deceased was married to Bibi Amna Khan (Amna). The deceased had four biological children; Mohammad Amer Khan, the plaintiff by counterclaim, Bibi Khadijha (Khadya) Khan, the first defendant by counterclaim, Bibi Raheela Khan, the second defendant by counterclaim and Bibi Shakila Khan, the third defendant by counterclaim. The deceased adopted Alima Khan, the biological daughter of his sister Maqboola Jan Khan, to enable her to immigrate from Pakistan to Australia.
As each of the deceased's children share the same last name, I will refer to them as Mohammad, Khadya, Raheela, Shakila and Alima respectively, with no disrespect intended. I will also refer to other family members of the deceased by their first names for the same reason.
The deceased and Amna separated in 1991. Although they never divorced, spousal maintenance and property settlement between the deceased and Amna were formalised in the Family Court of Western Australia in March 1991.
The deceased executed a Will dated 2 March 1998 (1998 Will).
In March 2014, the deceased contacted lawyers, Slater & Gordon, to prepare a new will for him. On 20 July 2014, the deceased's niece, Rukhsana Khan, sent an email to Slater & Gordon, as directed by the deceased, in relation to his new will.
On 23 July 2014, a solicitor for Slater & Gordon emailed the deceased a blank instruction sheet in relation to a new will. Rukhsana filled out the instruction sheet at the direction of the deceased.
On 2 August 2014, the deceased was admitted to hospital. On the same day he signed the instruction sheet and Rukhsana and Maqboola witnessed the deceased sign the instruction sheet (Instruction Sheet). The Instruction Sheet made two references to 'see attached document' which was a reference to a copy of the email sent by Rukhsana, on behalf of the deceased, to Slater & Gordon on 20 July 2014 which was signed by the deceased (2014 Email).
The deceased died on 3 August 2014.
On 10 February 2025, Khadya, Raheela and Shakila commenced this action seeking proof in solemn form of the Instruction Sheet and the 2014 Email as the will of the deceased (together the 2014 Will).
On 29 July 2025, following a mediation before a registrar of this court, the parties entered into a binding deed of agreement (BDA), pursuant to which Khadya, Raheela and Shakila agreed to withdraw their contention that the 2014 Will was the last will of the deceased and the parties agreed that the 1998 Will be propounded as the last will of the deceased.
Mohammad, by his counterclaim in this action,[1] seeks orders propounding the 1998 Will in solemn form and that he be appointed the administrator of the deceased's estate. These orders are consented to by the other parties to the action.
[1] Substituted Counterclaim filed 3 September 2025.
On 28 August 2025, a registrar of this court made orders granting Mohammad leave to enter this action for trial on an uncontested and undefended basis pursuant to O 73 r 19 of the Rules of the Supreme Court 1971 (WA), that the trial be listed on the basis that Mohammad's counterclaim is uncontested and undefended, and that the counterclaim be determined on the papers, unless otherwise ordered.
Mohammad filed the following material in support of his counterclaim:
(1)affidavit of Mohammad Amer Khan sworn 11 September 2025 (Khan Affidavit);
(2)outline of submissions filed 15 September 2025; and
(3)outline of supplementary submissions filed 18 September 2025.
Notwithstanding the consent of all parties, I must still be independently satisfied, on the evidence before me, that the 1998 Will is the last will of the deceased.
For the reasons that follow, I am satisfied, based on the affidavit evidence before the court, that:
(1)the 1998 Will embodies the deceased's testamentary intentions, that he intended it to be his will and that he had testamentary capacity at the time he executed it; and
(2)the deceased did not intend the 2014 Will to be his will.
I therefore make orders propounding the 1998 Will in solemn form and appointing Mohammad as the administrator of the deceased's estate.

The deceased's estate

The deceased's estate comprises the following assets:
(1)70% interest in 69 - 79 Brentwood Road, Kenwick (Kenwick Property)[2]; and
(2)70% interest in 287 The Strand, Dianella (Dianella Property).[3]
[2] Khan Affidavit Annexure 'MAK18'.
[3] Khan Affidavit Annexure 'MAK19'.
The deceased's estate has the following liabilities, as at 12 September 2025:[4]
(1)Loan from Suncorp Bank, account ending 304: $61,350.18; and
(2)Loan from Suncorp Bank, account ending 101: $127,804.24.
[4] Khan Affidavit [53] - [58].

1998 Will

The 1998 Will provides that Mohammad receive the deceased's 70% interest in the Kenwick Property and two fifths of the deceased's 70% interest in the Dianella Property, and that Khadya, Raheela and Shakila receive the balance of three fifths of the deceased's interest in the Dianella Property.
By the 1998 Will, the deceased appointed Maqboola and Mohammed Ayub Khan (Ayub) as executors. On 8 December 2016, Maqboola and Ayub renounced their appointment as executors. Ayub died on 8 February 2020.

2014 Will

The 2014 Will provides in substance for the children of Mohammad to receive the deceased's 75% (sic) share of the Dianella Property, Mohammad to receive two of five parts of the deceased's 75% (sic) interest in the Kenwick Property, and Khadya, Raheela and Shakila to receive the balance of three of five parts of the deceased's share in the Kenwick Property.
The 2014 Will purported to appoint Slater & Gordon as executor. On 28 August 2023, Slater & Gordon renounced probate of the 2014 Will.[5]
[5] Khan Affidavit Annexure 'MAK8'.

Legal principles

Although the parties have reached a compromise, the Court must be independently satisfied by sufficient evidence that a grant in solemn form of a will is appropriate.[6] The agreement of the parties is, however, a relevant matter for the court to take into consideration together with all of the other relevant considerations.[7]
[6] Wheatley v Edgar [2003] WASC 118; Mott v Hill [2021] WASC 43 [45] (Mott v Hill).
[7] Mottv Hill [45].
In order to establish that proof of a will should be pronounced in solemn form, it is necessary for the propounding party to establish the following four matters:[8]
(1)due execution of the will;
(2)the deceased had testamentary capacity to make the will at the time of execution;
(3)the deceased knew and approved of the contents of the will; and
(4)the deceased intended that the document be his or her will.
[8] Fisher v Kay [2010] WASCA 160 [82].
In considering the first of these matters, that being due execution of the will, the starting point is to consider whether a will complies with the formal requirements set out in the Wills Act1970 (WA) (Wills Act). Section 8 of the Wills Act provides:
8.Execution generally
Subject to sections 17 and 20 and Parts XA, X and XI, a will is not valid unless -
(a)it is in writing; and
(b)it is signed by the testator or signed in the testator's name by some other person in the testator's presence and by the testator's direction, in such place on the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as the testator's will; and
(c)the testator makes or acknowledges the signature in the presence of at least 2 witnesses present at the same time; and
(d)the witnesses attest and subscribe the will in the presence of the testator but no publication or form of attestation is necessary.
Where a will has been duly executed in accordance with s 8 of the Wills Act, there is a rebuttable presumption that the deceased had testamentary capacity and had knowledge of, and approved of, the contents of the will.[9]
[9] West Australian Trustee Executor and Agency Company Ltd v Holmes [1961] WAR 144, 146.
However, the court may dispense with the formalities specified in s 8 of the Wills Act. An informal will may be admitted to probate pursuant to s 32 of the Wills Act which provides:
32.Court may dispense with formal requirements
…
(2)A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in the manner required by this Act, constitutes -
(a)a will of the person; or
(b)an alteration to a will of the person; or
(c)the revocation of a will of the person; or
(d)the revival of a will or part of a will of the person,
if the Supreme Court is satisfied that the person intended the document to constitute the person's will, an alteration to the person's will, the revocation of the person's will or the revival of a will or part of a will of the person, as the case may be.
(3)In forming its view, the Supreme Court may have regard (in addition to the document) to any evidence relating to the manner of execution or testamentary intentions of the person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the person.
In Hatsatouris v Hatsatouris,[10] the New South Wales Court of Appeal said that the following elements must be satisfied in order for the court to dispense with the formal requirements of execution of a will under an equivalent provision to s 32 of the Wills Act:
(1)the will is a document;
(2)the will purported to embody the testamentary intentions of the deceased; and
(3)either at the time the will was brought into existence or at some later time, the deceased, by some act or words demonstrated that the subject document without more on his part, was to operate as his will.[11]
[10]Hatsatouris v Hatsatouris [2001] NSWCA 408 (Hatsatouris) [56], cited with approval in Oreski v Ikac [2008] WASCA 220 [53].
[11] Cited with approval in Oreski v Ikac [2007] WASC 195 [105].

Disposition

The 1998 Will has been duly executed in accordance with s 8 of the Wills Act. Further, there is no evidence before me that is capable of rebutting the presumption that the deceased had testamentary capacity and had knowledge of, and approved of, the contents of the 1998 Will. In these circumstances, I am also satisfied that the deceased intended the 1998 Will to be his will.
The 2014 Will however, has not been duly executed in accordance with s 8 of the Wills Act. The 2014 Will comprises both the 2014 Email and the Instruction Sheet - the deceased did not sign the 2014 Email in the presence of two witnesses present at the same time.
Having regard to the three elements identified in Hatsatouris, the 2014 Will is a document and does purport to embody the testamentary intentions of the deceased. However, the issue that arises in relation to the 2014 Will is whether the deceased intended the Instruction Sheet and the 2014 Email to operate together as his will.
In considering the same issue in Riches v McInnes, EM Heenan J said:[12]
The alleged testamentary document will not take effect, even as an informal Will, if it is in any way provisional, tentative, preliminary or part of some proposals which this deceased has recorded or received but has not yet adopted as reaching his or her then present testamentary intentions …
[12] Riches v McInnes [2010] WASC 298 [28].
Relevant to this issue, the 2014 Email:[13]
(1)states 'You may recall I got in touch with Slater & Gordon in March 2014 enquiring on getting my Will created … you mentioned if I email you the particular you would be able to come back to me with information on which type of Will I needed and an indicative costs. Please find key information relating to my Will requirements… below'; and
(2)incorrectly states that the deceased's interest in the Dianella Property and the Kenwick Property is 75%; and
(3)states 'I would really appreciate if you can review my details and provide me with feedback this week'.
[13] Khan Affidavit Annexure 'MAK6'.
Further, the Instruction Sheet:[14]
(1)is incomplete at page 7 under the heading 'Assets';
(2)on page 8, the box ticked by the deceased states 'No, I do not wish a specialist estate planning solicitor to contact me to discuss my needs. I wish to proceed with a standard Will'; and
(3)on page 8, the box ticked by the deceased states 'Option 1: I have no existing Will. These instructions are intended to take effect as a temporary Will until a formal Will is prepared and signed by me'.
[14] Khan Affidavit Annexure 'MAK7'.
There are factors which indicate that the Instruction Sheet and the attached 2014 Email was intended by the deceased to operate as his will without more having to be done by the deceased. Those factors are:
(1)the box ticked on the Instruction Sheet that specifies that it is to operate as a temporary will indicates that the deceased intended the Instruction Sheet, which incorporated the 2014 Email by reference, to take effect as his temporary will;
(2)the Instruction Sheet is signed by the deceased and witnessed by two people in the presence of the deceased and each other; and
(3)the 2014 Email is signed by the deceased.
These are significant factors weighing in favour of a finding that the deceased intended the Instruction Sheet and the 2014 Email, without more, to take effect as his will. However, they are not conclusive factors and I must have regard to all of the circumstances in assessing whether the deceased intended these documents to constitute his will, without him having to do more.
The factors which weigh against such an intention on the part of the deceased are:
(1)although the deceased selected 'Option 1' which stated that he intended the Instruction Sheet to take effect as a temporary will, this option also stated that he did not have an existing will. This was not accurate as the deceased had not revoked the 1998 Will;
(2)the deceased incorrectly stipulated, in the 2014 Email, that his interest in each of the Kenwick and Dianella Properties was 75%;
(3)the deceased had contacted Slater & Gordon to prepare a formal will as clearly set out in the email sent by Ruhksana on his behalf on 20 July 2014 - it is clear from this email that the deceased understood that he was providing Slater & Gordon with instructions to prepare a formal will for him and that the email itself was not intended to constitute his will; and
(4)the deceased had executed a formal will in the 1998 Will and so had knowledge of what was required in relation to a document which would take effect as his will.
Khadya, Raheela and Shakila originally commenced this action seeking to prove the 2014 Will in solemn form - they bore the onus of persuading the court that the deceased intended the 2014 Will to take effect as his will without more to be done on his part. A further factor to consider, although not determinative, is that all parties to the action now consent to the 1998 Will be propounded in solemn form. No party is seeking to prove the 2014 Will in solemn form.
Having regard to all of the circumstances, I am not persuaded that the deceased intended the Instruction Sheet and the 2014 Email to constitute his will, without more to be done on his part. In my view, it is more likely than not that the deceased contemplated that more would need to be done by him to complete his testamentary intentions and that the Instruction Sheet and the 2014 Email merely set out his testamentary intentions.
I therefore find that the 2014 Will merely sets out what the deceased wished or intended his will to say, rather than operating as the will of the deceased without more to be done on his part.
There is also the matter of the position of interested parties in relation to this action. As I have outlined, all parties to the action consent to the propounding of the 1998 Will in solemn form.
Amna, the deceased's wife, and Alima, the deceased's adopted daughter, have both renounced any right to administration of the deceased's estate and any entitlement in distribution of the deceased's estate.[15]
[15] Khan Affidavit Annexure 'MAK11' and 'MAK12' respectively.
Mohammad has three children, Humza born on 23 March 2013, Nushwa born on 10 September 2014 and Hakim born on 18 March 2016. Pursuant to the 2014 Will, the children of Mohammad would receive 75% of the deceased's share of the Dianella Property. However, given that only Humza was alive and that Nushwa was in utero at the date of the deceased's death, they are the only children of Mohammad who would be entitled in distribution under the 2014 Will.[16]
[16] See Re Lapalme; Daley v Leeton (2019) 60 VR 71.
Mohammad submits that the interests of justice do not require Humza and Nushwa to be joined as interested parties to this action for the following reasons:
(1)substantial legal costs would be incurred for Humza and Nushwa to be joined as parties to the action, including appointment of a next friend and obtaining legal representation;
(2)Mohammad sustained a workplace injury in March 2025 rendering him unable to work and he is supporting his wife and three children from the rental income of the Dianella Property and the Kenwick Property;[17] and
(3)the parties have always been represented by experienced legal practitioners and have received legal advice in relation to the BDA.
[17] Khan Affidavit [65] ‑ [66].
In the circumstances, I am satisfied that it is in the interests of justice that Humza and Nushwa are not joined as parties to this action. In any event, I am not persuaded that the deceased intended the 2014 Will to operate as his last will.

Appointment of administrator

Section 36 of the Administration Act 1903 (WA) (the Administration Act) provides that where, inter alia, an executor is named in a will, that executor not being willing and competent to take probate, the Court may '… appoint an administrator of the estate of the deceased … and such administration may be limited as the Court thinks fit'.

The 1998 Will appoints Maqboola and Ayub as executors. Both have renounced their right to apply for probate of the 1998 Will. Ayub has since died.
I consider that it is appropriate in these circumstances for Mohammad to be appointed administrator of the deceased's estate.

Orders

I make the following orders:
(1)The Will and testament of Shah Alam Khan (Deceased) executed on 2 March 1998 (Will) is valid and has force and effect in solemn form of law.
(2)The Probate Registrar is directed to issue a grant of Letters of Administration with the Will annexed in solemn form in favour of Mohammad Amer Khan.
(3)The costs of the Plaintiff by Counterclaim of the action and any additional costs of and incidental to pronouncing the Will be paid out of the Estate of the Deceased.
(4)There be no order for costs relating to the Defendants by Counterclaim.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CS
Associate to the Hon Justice Whitby
22 SEPTEMBER 2025