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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Khan v Khan

Details

AGLC: Khan v Khan [2025] WASC 396
Case: [2025] WASC 396
Decision Date: 22 SEPTEMBER 2025

CaseChat Overview and Summary

In the matter of Khan v Khan, the court was tasked with determining the validity of a will executed by the deceased, Shah Alam Khan, and deciding who should administer his estate. The primary dispute centred on whether a later informal will should be recognised as the deceased's final testament. The deceased's 1998 will appointed Maqboola and Ayub as executors, but both have renounced their right to apply for probate, and Ayub has since died. The matter was brought before the court to clarify the succession of the estate and the administration of the deceased's affairs.

The central legal issues before the court were whether the 1998 will was valid and enforceable in its solemn form and whether it was the deceased's intention that this will should operate as his final testament, superseding any earlier wills. The court had to consider the statutory provisions under Section 36 of the Administration Act 1903 (WA), which allows the court to appoint an administrator if an executor is unwilling or unable to take probate.

The court found that the 1998 will was valid and had force and effect in its solemn form. Given that both appointed executors had renounced their right to apply for probate and that Ayub had since passed away, the court determined it appropriate to appoint Mohammad as the administrator of the deceased's estate. The court also directed the Probate Registrar to issue a grant of Letters of Administration with the will annexed in solemn form in favour of Mohammad. The court further ruled that the costs of the action and any additional costs related to the pronouncement of the will would be paid out of the deceased's estate, with no order for costs relating to the defendants by counterclaim.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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. 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.