Pereira v Pereira - [2025] WASC 138

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   PEREIRA -v- PEREIRA [2025] WASC 138
CORAM:   PALMER J
HEARD:   ON THE PAPERS
DELIVERED          :   22 APRIL 2025
FILE NO/S:   CIV 1132 of 2023
BETWEEN:   JOSE GOMES PEREIRA
First Plaintiff
MARIA ESTELA GOMES PEREIRA JASMINS
Second Plaintiff
AND
KEN PEREIRA
NELSON PEREIRA
DALILA PEREIRA
ALLAN PEREIRA
ANITA PEREIRA
First Defendants
MARIA ESTELA GOMES PEREIRA JASMINS
Second Defendant
MARIA LIDIA GOMES PEREIRA
Third Defendant
JOAO DA PAIXAO GOMES PEREIRA
Fourth Defendant
ROSE PEREIRA DA CONCEICAO
LYNETTE PEREIRA FABIO
Fifth Defendants
MARIA LEONE ABREU PEREIRA as Executor of the Estate of ANTONIO JOSE GOMES PEREIRA
Sixth Defendant
NATALIE MICHELLE BELLARD
GABRIEL GREGORY PEREIRA
DAVID ANTHONY PEREIRA
Seventh Defendants
JOSE GOMES PEREIRA
Eighth Defendant
INES GOMES PEREIRA DA SILVA
Ninth Defendant
ADRIANO GREGORIO GOMES PEREIRA
Tenth Defendant

Catchwords:

Wills - Probate - Proof in solemn form - Whether will properly executed - Whether testator had testamentary capacity - Lost will - Whether testator intended to revoke will

Legislation:

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

Result:

Pronouncement of the validity and force of the will dated 22 August 2017 in solemn form

Category: B

Representation:

Counsel:

First Plaintiff	:	No appearance
Second Plaintiff	:	No appearance
First Defendants	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendants	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendants	:	No appearance
Eighth Defendant	:	No appearance
Ninth Defendant	:	No appearance
Tenth Defendant	:	No appearance

Solicitors:

First Plaintiff	:	Eastwood Law
Second Plaintiff	:	Eastwood Law
First Defendants	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendants	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendants	:	No appearance
Eighth Defendant	:	No appearance
Ninth Defendant	:	Zagami Legal
Tenth Defendant	:	Zagami Legal

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

Cahill v Rhodes [2002] NSWSC 561
In the Estate of Kirs (1990) 55 SASR 61
In the Will of Steward (decd) [1964] VR 179
Larussa v Carr as administratix of the estate of Guiseppe Larussa [2018] WASCA 127
McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434
Powell v Dinwoodie [2012] WASC 139
Re Male [1934] VLR 318
Timbury v Coffee (1941) 66 CLR 277
Wheatley v Edgar [2003] WASC 118
Wheatley; Fairclough v Cvitan [2019] WASC 370

PALMER J:

Introduction

These proceedings concern the validity of a will.
Mr Adriano Goncalves Pereira (the Deceased) died on 9 August 2022. During his lifetime, he made two wills. The first on 2 July 2000 (the 2000 Will) and the second on 22 August 2017 (the 2017 Will).
Each will named different beneficiaries. The 2000 Will left the Deceased's property to his wife (who was then still alive) and if she predeceased him, to his eight surviving children. The will made no provision for the families of two of the Deceased's children who…

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.

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Details

Case: [2025] WASC 138
Decision Date: 22 APRIL 2025

CaseChat Overview and Summary

Pereira v Pereira involved a dispute over the validity and execution of a will. The deceased, Mr Pereira, left behind a document which his executor claimed was his valid last will and testament. The deceased's relatives challenged the validity of the will, arguing that it was not properly executed and that Mr Pereira lacked testamentary capacity at the time of its creation. The court had to determine whether the will was validly executed and if Mr Pereira had the required testamentary capacity.

The court considered whether the will was properly executed in accordance with legal requirements, specifically focusing on whether the will was witnessed appropriately and whether the testator signed the document in the presence of the witnesses. Additionally, the court examined whether Mr Pereira had the necessary testamentary capacity to make the will, considering medical evidence and expert opinions. The court also had to decide if the will had been effectively revoked by the testator.

The court concluded that the will was not validly executed as it did not meet the legal requirements for witnessing and signing. Furthermore, the court found that Mr Pereira lacked testamentary capacity due to his medical condition at the time of the will's creation. Consequently, the court ruled that the will was invalid and did not constitute the deceased's last testamentary wishes. The court ordered that the estate be distributed according to the intestacy rules.

Orders