Tucker v Tucker - [2025] WASC 382

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   TUCKER -v- TUCKER [2025] WASC 382
CORAM:   SEAWARD J
HEARD:   9 SEPTEMBER 2025
DELIVERED          :   9 SEPTEMBER 2025
PUBLISHED           :   12 SEPTEMBER 2025
FILE NO/S:   CIV 2388 of 2024
BETWEEN:   MELISSA ANNE TUCKER
Plaintiff
AND
KARINNE NICOLE TUCKER
First Defendant
STACEY JOY MANWARING
Second Defendant
VANESSA RENEE TOLOMEI
Third Defendant

Catchwords:

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

Legislation:

Administration Act 1903 (WA)
Rules of the Supreme Court 1971 (WA) O 73
Wills Act 1970 (WA)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff	:	R J Squires
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance

Solicitors:

Plaintiff	:	Lynn & Brown Lawyers
First Defendant	:	Jackson McDonald
Second Defendant	:	Jackson McDonald
Third Defendant	:	Jackson McDonald

Cases referred to in decision:

Allen v Quinn [2025] WASC 2
Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558
Burgess v Davey [2025] WASC 343
Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786
Fisher v Kay [2010] WASCA 160
Grant Thomas Russell as executor of the will of Emily Jane Anderson v Anderson [2021] WASC 435
In the Will of Wilson (1897) 23 VLR 197
Scattini v Matters [2004] QSC 459
Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277
Veall v Veall [2015] VSCA 60
Wheatley v Edgar [2003] WASC 118

SEAWARD J:

(This judgment was delivered extemporaneously and has been edited from the transcript to correct matters of grammar and formatting, and to add headings and full citations).

Introduction

The plaintiff, Melissa Anne Tucker, applies for an order to pronounce the force and validity in solemn form of the will of her late husband, Stan Tucker, dated 28 November 2023 (the Will) and for a grant of probate in the Will in her favour.
In these reasons, I will refer to the various family members by their first names. No disrespect is intended in so doing.
Stan died on 31 December 2023, aged 70 years old and by the Will appointed Melissa as the executor of his estate.
Stan left an estate with an estimate net value of around $2.6 million. In the Will, Stan made provision for Melissa as well as his three adult daughters from an earlier marriage who are the defendants in these proceedings. These were Stan's only children. On 20 January 2025, the defendants filed a notice of intention to abide by the decision of the court, save as to costs and have not participated in these proceedings, save for the filing of affidavits of scripts.
Case management orders have previously been made granting Melissa leave to enter the matter for trial on an undefended basis, and for the trial to proceed by way of affidavit evidence. The trial was listed for 9 September 2025.
The Will also makes provision for Stan's sister and his grandchildren, none of whom are parties to these proceedings. I was satisfied that it was appropriate to proceed to trial without hearing from Stan's sister and grandchildren.
I observe that neither Stan's sister nor his grandchildren are people entitled in the distribution of Stan's estate if it were administered pursuant to the Administration Act 1903 (WA).[1] The Will makes provision for Stan's sister and grandchildren, and there is no proposal to alter the Will.
[1] Administration Act 1903 (WA), s 14.
In those circumstances, I considered the lack of their involvement did not affect my assessment as to whether I should make the orders sought.
I was greatly assisted by the written submissions of counsel for Melissa filed prior to the commencement of the trial, and the oral submissions made during the trial.
For the reasons that follow, I am satisfied that the Will was duly executed by Stan. I am also satisfied that Stan had testamentary capacity at the time he executed the Will, that he knew and approved the contents of the Will and that he intended the document to be his Will and that it is therefore appropriate to pronounce the force and validity of the Will in solemn form.

Evidence

The evidence at trial was by affidavit and the following affidavits were read:
(1)affidavit of scripts of Melissa Anne Tucker sworn on 24 March 2025;
(2)affidavit of scripts of Karinne Nicole Tucker, the first defendant, affirmed 21 March 2025;
(3)affidavit of scripts of Stacey Joy Manwaring, the second defendant, affirmed 21 March 2025;
(4)affidavit of scripts of Vanessa Renee Tolomei, the third defendant, affirmed 21 March 2025;
(5)affidavit of Sharron Patrick, solicitor and witness, sworn 8 September 2025, attaching a copy of a previous affidavit of Ms Patrick sworn 4 April 2025, the original of which cannot now be located;
(6)affidavit of Gemma Patrick, law student and witness, sworn 8 September 2025, attaching a copy of a previous affidavit of Gemma Patrick sworn 4 April 2025, the original of which cannot now be located; and
(7)affidavit of Melissa Anne Tucker, sworn 7 April 2025.

Legal principles

The legal principles relevant to an application for a grant of probate of a will in solemn form were helpfully outlined in the recent of Lemonis J in Allen v Quinn.[2] The following summary of the legal principles is taken largely from his Honour's decision, with which I respectfully agree.
[2] Allen v Quinn [2025] WASC 2 [15] ‑ [25].
The probate of a will may be granted in common form or in solemn form. There is a significant difference between the two. A grant of probate in common form is revocable, while the circumstances in which a grant in solemn form may be revoked are limited.[3] An executor has an absolute right to seek to prove the will in solemn form.
[3] Wheatley v Edgar [2003] WASC 118 [17] ‑ [18].
The proof required to obtain a grant in solemn form differs to that required for a grant in common form. In order to establish that proof of the will should be pronounced in solemn form, it is necessary for the propounding party to establish:[4]
(1)due execution of the will;
(2)that the deceased had testamentary capacity to make the will at the time of execution;
(3)that the deceased knew and approved of the contents of the will; and
(4)that the deceased intended that the document they executed was to be their will.
[4] Fisher v Kay [2010] WASCA 160 [82].
These requirements are often described by the summary terms of: due execution; testamentary capacity; knowledge and approval; and testamentary intention.
Relevantly, due execution is established if the will is signed by the deceased in the presence of two witnesses present at the same time, who then sign the will attesting that the deceased signed it in their presence. That attestation needs to occur in the deceased's presence.[5]
[5] Wills Act 1970 (WA), s 8, observing that this is not the only manner in which due execution can be established.
It is sufficient for the purposes of this case to observe that the applicable test as to testamentary capacity has been summarised as follows:[6]
Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realise the extent in character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner.
[6] Allen v Quinn [2025] WASC 2 [20], citing In the Will of Wilson (1897) 23 VLR 197, 199 and Timbury v Coffee [1941] HCA 22; (1941) 66 CLR 277, 283.
In making this assessment, regard is had to the dispositions made by the will and the extent to which the will provides for those persons who were the objects of the deceased's affection during their life.
In respect of the question of age, in the decision of Scattini v Matters, Muir J held:[7]
Great age is a factor which will normally suggest the exercise of particular vigilance when considering testamentary incapacity (Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558.) It does not follow, however, that even a marked decline in a testator's intellectual capacity through advancing age establishes lack of testamentary capacity.
[7] Scattini v Matters [2004] QSC 459 [96]; Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, 560.
Knowledge and approval of the contents of a will is the traditional language used to convey that the will represents the testamentary intentions of the deceased. Testamentary capacity, and knowledge and approval, are distinct concepts. Testamentary capacity is a necessary, but not sufficient, condition for the establishment of knowledge and approval.[8]
[8] Allen v Quinn [2025] WASC 2 [23]; Veall v Veall [2015] VSCA 60 [173].
Testamentary intention is that the deceased intended the document they executed was to be their will. As was observed by Lemonis J, it would be a rather unusual circumstance where testamentary capacity and knowledge and approval were established, but testamentary intention was not. However, the circumstances as a whole still need to be looked at in assessing whether testamentary intention is established.[9]
[9] Allen v Quinn [2025] WASC 2 [24].
Finally, there are a number of presumptions that can ordinarily be availed of in cases seeking to prove a will. A presumption of due execution arises where a will regular on its face bears the signatures of a testator and two witnesses. Where a will has been duly executed, three further presumptions arise: testamentary intention, testamentary capacity and knowledge and approval of the contents of the will.[10]
[10] Fisher v Kay [2010] WASCA 160 [83], [85]; Allen v Quinn [2025] WASC 2 [25].
In the present case, the trial is proceeding on an undefended basis, with the defendants filing a notice of intention to abide by the decision of the court, save as to costs.
The circumstances surrounding the decision to proceed to obtain proof in solemn form were addressed in oral submissions by counsel for Melissa. A caveat was originally lodged on the probate file in July 2024 by one of the defendants.
That caveat was withdrawn on 17 December 2024, after the writ had been filed in this matter. I am satisfied that given the past circumstances, and also the matters raised in the affidavit evidence before me, that it is appropriate to proceed on the basis of proof in solemn form.
In terms of the trial proceeding on an undefended basis, I consider the observations of Lindsay J in Estate Kouvakas; Lucas v Konakas,[11] regarding the role of the court in these circumstances are relevant:
251… if all interested parties appear before the Court or are demonstrated to have been given sufficient notice of the proceedings to be bound by any determination of the Court, the Court may have greater latitude than otherwise would be the case on an assessment of the evidence upon which a determination about a testator's testamentary intentions, if any, is to be made.
…
261… discretion resides in the Court about the nature and scope of the evidence which is formally noticed on the making of a grant in solemn form: Executor Trustee Australia Ltd v Henderson [2006] SASC 82 at [30]; Wheatley v Edgar [2003] WASC 118; 4 ASTLR 1 at [24].
262In the interests of the due administration of justice the Court may acquiesce in a procedural process in which selective notice is taken of some, and not other, evidence in order to accommodate an application for a solemn form grant in which all adversarial interests acquiesce. It is because of this possibility that the essential character of a solemn form grant cannot, for all purposes, be defined by reference to an evidentiary standard alone.
263The Court reserves a right to act expediently in the interests of the administration of justice: eg, Palin v Ponting [1930] P 185 at 188, applying Gornall v Mason (1887) 12 PD 142. It does not, and it is not required to, apply in every case a rigorous requirement, for a grant in solemn form, that it have no notice, in fact, of evidence casting doubt on the validity of an instrument propounded as the deceased's last will. Where it is proper and reasonable to do so, it can, in the interests of justice and the due administration of an estate, proceed on the basis of a formal notation of evidence tending to prove the validity of an instrument, allowing parties to discount other lines of inquiry.
[11] Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786; Allen v Quinn [2025] WASC 2 [17].
See also in this regard the decision of Burgess v Davey and Grant Thomas Russell v Anderson.[12]
[12] Burgess v Davey [2025] WASC 343; Grant Thomas Russell as executor of the will of Emily Jane Anderson v Anderson [2021] WASC 435.

Background facts

Individuals and their relationships

Stan was born on 10 June 1953. Stan married Melissa on 22 November 2023, however, Stan and Melissa had been a couple since 2014. Stan and Melissa remained married up until the time of his death.
Stan had three adult daughters from an earlier marriage, being each of the defendants. The defendants are Stan's only children.
Stan was previously married as follows:
(1)on 16 November 1974, to Karin Therese Dazkowskyj;
(2)on a date unknown, to Penny (surname unknown);
(3)on 31 May 2003, to Debrah Astarya Joy; and
(4)on 27 February 2011, to Sandra Teale.

Death

Stan died on 31 December 2023. The cause of death as recorded in his death certificate is non‑small cell lung cancer (months) and the contributory causes were ex‑smoker, asbestos exposure and prostate cancer.

Previous will

Each of the affidavits of scripts attaches a copy of an earlier will made by Stan, made on 25 September 2002. That will was revoked by Stan's subsequent three marriages.[13]

The Will - circumstances of making

[13] Wills Act 1970 (WA), s 14.

The affidavit evidence of Melissa, Sharron Patrick and Gemma Patrick outlines the circumstances of the making of the Will. I find the following facts in this regard.
The Will was prepared by Sharron Patrick, who is an estates solicitor at Alto Legal, and who has more than 10 years' experience in wills and estate law.
Sharron Patrick was initially contacted by Melissa in October 2023 to attend Stan's house and take instructions for his Will. An appointment was initially made for around 16 October 2023, but that was then cancelled.
On 25 November 2023, Melissa telephoned Sharron Patrick and arranged for an urgent appointment on 28 November 2023, as Stan's health was deteriorating. On the same date, Melissa emailed Sharron Patrick a document outlining instructions on behalf of Stan, detailing what he wanted in the Will.
Sharron Patrick sought (and obtained) further information from Stan and Melissa in emails exchanged on 27 November 2023 to assist in preparing a draft will to take with her to the appointment scheduled for 28 November 2023.
On 28 November 2023, Sharron Patrick and Gemma Patrick (a law student) travelled to the Stan and Melissa's residential matrimonial home in Welshpool Road East, Carmel (the Property). Melissa greeted them on arrival and took them into Stan's bedroom where he was lying in bed. Sharron Patrick asked Melissa to leave the room so that she could discuss Stan's intentions in private. Melissa left the room, leaving the deceased alone with Sharron Patrick and Gemma Patrick.
Sharron Patrick proceeded to read out to Stan a draft of the Will that Sharron Patrick had prepared using the information she had obtained from her emails with Melissa on 25 and 27 November 2023.
Stan provided further information to Sharron Patrick during the course of that discussion and Sharron Patrick made handwritten notes on the draft Will she had with her, noting Stan's instructions.
Sharron Patrick and Gemma Patrick then left the Property and returned to the offices of Alto Legal. Sharron Patrick then typed up amendments to the draft Will consistent with Stan's instructions, and then immediately returned to the Property.
Sharron Patrick and Gemma Patrick met again with Stan in his bedroom, in the absence of Melissa.
Sharron Patrick proceeded to read out the entire updated draft Will to Stan and also presented the updated draft Will to him so that he could read it through at his own pace and ask any questions.
Stan indicated to Sharron Patrick and Gemma Patrick that he was happy with the updated draft Will and wished to sign.
Stan then proceeded to sign the Will in the presence of Sharron Patrick and Gemma Patrick and without Melissa in the room.
After the Will was signed, Stan asked Sharron Patrick to call Melissa back into the room, which she did. Stan then asked Sharron Patrick to take the original signed Will back to the offices of Alto Legal and store it there, which Sharron Patrick did.
Melissa was not shown a copy of the Will on 28 November 2023. I am also satisfied that the copy of the will attached to the affidavits of Sharron Patrick and Jemma Patrick is the will that was signed by Stan as outlined on 28 November 2023.

The Will - terms

The Will appoints Melissa as Stan's executor and trustee.
Stan left an estate with an estimate net value of about $2.6 million. The main asset of the estate is Stan's interest in the Property, the value of which was estimated at $1.5 million. Other assets included an extensive collection of motor vehicles, many of them vintage, as well as grandfather clocks, silver bars, stamps and household possessions.
By way of summary, the Will provides for the specific gifts:
(1)an 1879 Spelter Warrior Figure Clock with the two side statues, to Vanessa;
(2)a 18^th Century Grandfather clock from England, to Karinne;
(3)a sword 'the Light Brigade' from the Crimean War, medallion and paperwork, Hardian & Atlean / Minoan artefacts, any fund held in any bank account in Stan's sole name and all of Stan's cash reserves, to Melissa;
(4)Stan's trunk with all the family history, a pocket watch and content to Stan's sister, Judy Hassack;
(5)Stan's pool table and all accessories to Stacey; and
(6)two 100-ounce silver bars to each of Stan's grandchildren (each grandchild is identified in the Will).
The Will further provides that the defendants and Melissa are to be given the special item allocated to each of them (referred to above) and they are then to each choose 19 other items from Stan's household. A rotating method of gift selection is specified.
In relation to the Property, the Will include a 'right to reside' clause which provides that:
(1)Melissa is able to live at the Property for as long as she wishes or is able to do so;
(2)whilst residing at the Property, Melissa is required to pay all rates, levies, fees, charges, taxes and other outgoings in respect of the Property;
(3)it is Stan's wish that his daughters and grandchildren assist Melissa with the upkeep of the Property;
(4)whilst residing at the Property, Melissa is to have full use of the 4 x 4 Hilux Fire Truck, the John Deere UTV, the Transit van and the Hilux Tipper, all of which are to be kept on the Property until Melissa vacates the Property; and
(5)should Melissa die, re-marry, re-partner or be otherwise unable or unwilling to reside at the Property, then it is to be sold and the proceeds form part of the residue of Stan's estate.
The Will then provides that the residue of the estate (including Stan's car collection, coins and stamp collections which are to be sold), is to be divided equally between the Melissa and the defendants, save for an amount of $65,000 which had already been gifted to Stacey, which will come out of her share.
The Will provides that if any of the defendants die before Stan, leaving a child or children who attains the age of 18, then that child is to take, or if more than one, then those children are to take in equal shares, the shares of Stan's estate which his, her or their parent would have taken if that parent had survived Stan.

Due Execution

A presumption of due execution arises where a will, regular on its face, bears the signatures of a testator and two witnesses. The Will meets those requirements here.
Further, I am satisfied that there is nothing in the evidence before me that rebuts this presumption. The circumstances of the making of the Will, as detailed in the affidavit evidence Sharron Patrick and Gemma Patrick and outlined previously, establishes that the Will was duly executed.
Three presumptions arise from due execution: testamentary intention, testamentary capacity and knowledge and approval of the contents of the will. I will address each in turn.

Testamentary capacity

The first presumption that arises from due execution of the Will, is a rebuttable presumption of testamentary capacity. Melissa relies on this presumption, but also submits that there is nothing in the evidence before the court to rebut this presumption.
I accept that submission. The following evidence before the court satisfies me that at the time of the execution of the Will, Stan had testamentary capacity:
(1)there is nothing on the face of Stan's death certificate to raise doubt as to his testamentary capacity at the time of making the Will. The causes leading to Stan's death, all being matters concerned with physical health (lung and prostate cancer) are not of themselves suggestive of any mental impairment, nor is his age;[14]
[14] Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558, 560 and 571.
(2)the affidavits of Sharron Patrick and Gemma Patrick reveal that in their first meeting with Stan on 28 November 2023, Stan was able to follow the reading of the draft Will and advise Sharron Patrick of changes that he wanted to be made, including his date of birth; disposal of the pool table; his wish for Melissa to have use of four specific vehicles during her occupation of the matrimonial residence; and how he wanted the parties to select and distribute his personal effects;
(3)in respect of the first meeting with Stan, Sharron Patrick deposes as follows:
14.In my opinion, Stan was fully aware as to the assets he owned and how he wished to dispose of them. For example, there was a discussion about Melissa having use of certain vehicles which may assist her on the property.
Sharron Patrick is an estates solicitor of more than 10 years' experience and I therefore attach weight to her conclusions in this regard, particularly in light of her explanation of the process concerning the making of the Will;
(4)the affidavits of Sharron Patrick and Gemma Patrick reveal that in their second meeting with Stan on 28 November 2023:
(a)the entire updated draft Will was read aloud to Stan by Sharron Patrick, and Stan was also given an opportunity to read through the Will again at his own pace, before signing it; and
(b)Stan confirmed to Sharron Patrick and Gemma Patrick that he was happy with the updated draft Will, before signing it;
(5)Sharron Patrick took steps to ensure that Melissa was not present during both of the meetings with Stan on 28 November 2023, until after the Will had been executed;
(6)in her affidavit, Sharron Patrick deposes as follows:
I am confident that Stan understood and knew and approved of the contents of his Will at the time he signed it.
Again, I attach weight to Sharron Patrick's conclusion in this regard given her experience as an estates solicitor and in light of her explanation of the process concerning the making of the Will; and
(7)finally, I am of the opinion that the Will is rational on its face and through the various clauses, demonstrates an intention by Stan to make provision for his entire family and in particular an equitable distribution of his estate between Melissa and the defendants. There is nothing on the face of the Will which suggests that it is the product other than of a competent and understanding maker.

Knowledge and approval, and testamentary intention

Two further presumptions that arise from due execution of the Will, are rebuttable presumptions of knowledge and approval and testamentary intention. It is convenient to deal with these two elements together. Again, Melissa relies on these presumptions, but also submits that there is nothing in the evidence before the court to rebut these presumptions.
I accept this submission. The following evidence before me satisfies me that Stan knew and approved of the contents of the Will, and that he intended the document to be his will:
(1)testamentary capacity, which I have found, is a necessary precondition to the establishment of knowledge and approval;
(2)the Will, by cl 1, revokes all previous wills and other codicils made by Stan;
(3)the affidavit evidence of Sharron Patrick and Melissa is that the draft Will was prepared based on instructions from Stan;
(4)the affidavit evidence of Sharron Patrick and Gemma Patrick is that the draft Will was explained to Stan, absent Melissa or any other beneficiary, and Stan was able to explain to Sharron the changes he wished to make to the draft. Further, the amended draft was explained to Stan and he read through it and indicated that he was happy to sign it, again absent Melissa or any other beneficiary;
(5)the affidavit evidence of Sharron Patrick, an estates solicitor, is that her opinion from her interactions with Stan was fully aware of the assets he owned, how he wanted them disposed of, and who he wanted to be his executor. Further, that Sharron Patrick was confident that Stan understood and knew and approved of the contents of his Will at the time he signed it. For the reasons outlined earlier, I place weight on Sharron Patrick's evidence in this regard; and
(6)for the reasons outlined above, I consider the Will is rational on its face.

Conclusion and final orders

In all the circumstances, I am therefore satisfied that it is appropriate to pronounce the force and validity of the Will in solemn form.
I will make orders in the following terms:
1.The Court pronounces the force and validity of the last will of the late Stan Tucker (the deceased) dated 28 November 2023 in solemn form of law (the Will).
2.Upon Melissa Anne Tucker filing the original of the Will with the Probate Registry, a Probate Registrar issue a grant of probate of the Will in solemn form of law to Melissa Anne Tucker, the executor appointed under the Will.
3.The plaintiff's costs of the action, and any additional costs of and incidental to providing the Will, be paid out of the estate of the deceased on a solicitor and own client basis, subject to those costs being reasonable and properly incurred, such costs to be assessed if not agreed.
4.The defendants' costs in connection with:
(a)the defendants' memorandum of appearance;
(b)the defendants' notice to abide;
(c)the affidavits of scripts filed by each of the defendants; and
(d)the minute of consent orders filed on 5 September 2025,
be paid out of the deceased's estate on a solicitor and own client basis, subject to those costs being reasonable and properly incurred, such costs to be assessed if not agreed.
5.There be liberty to apply.

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