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.…

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 Tucker v Tucker

Details

AGLC: Tucker v Tucker [2025] WASC 382
Case: [2025] WASC 382
Decision Date: 12 SEPTEMBER 2025

CaseChat Overview and Summary

In the case of Tucker v Tucker, the dispute involved the validity of a will that was claimed to be made in solemn form. The matter was before the court to determine whether the will in question satisfied the legal requirements for such a form of testamentary disposition. The central issue was whether the will was duly executed in the presence of two witnesses, as required by law, and if it contained the necessary attestation clause.

The court was tasked with examining the evidence presented to ascertain the conditions under which the will was executed. This included reviewing witness testimonies, the circumstances surrounding the will's creation, and the presence of the required attestation clause. The court had to determine whether the will complied with the statutory requirements for solemn wills, as outlined in relevant legislation. The analysis involved a detailed consideration of the procedural elements that must be fulfilled for a will to be validly executed in solemn form.

The court concluded that the evidence did not sufficiently demonstrate that the will was executed in the presence of two witnesses, nor did it establish the presence of the required attestation clause. The court found that the will did not meet the statutory criteria for a solemn will. Consequently, the court declared the will invalid and ruled that the estate should be distributed according to the intestacy rules. This decision hinged on the strict compliance with the formalities required for the execution of a will in solemn form.

Orders