WAYNE BINGHAM IN HIS CAPACITY AS ADMINISTRATOR OF THE ESTATE OF MARIE LOUISE BINGHAM (DEC) -v- YOUNG [2026] WASC 282

[2026] WASC 282 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : WAYNE BINGHAM IN HIS CAPACITY AS ADMINISTRATOR OF THE ESTATE OF MARIE LOUISE BINGHAM (DEC) -v- YOUNG [2026] WASC 282 CORAM : STRK J HEARD : ON THE PAPERS DELIVERED : 10 JULY 2026 FILE NO/S : CIV 1892 of 2023 BETWEEN : WAYNE BINGHAM IN HIS CAPACITY AS ADMINISTRATOR OF THE ESTATE OF MARIE LOUISE BINGHAM (DEC) Plaintiff AND MARGARET ANNE YOUNG First Defendant JOCELYN ANNE YOUNG Second Defendant MADELIENE CLAIRE YOUNG Third Defendant ANDREW RAYMOND BELL Fourth Defendant GABRIELLE MARIE YOUNG Fifth Defendant JODI ANNE BINGHAM Sixth Defendant -- 1 of 23 -- [2026] WASC 282 Page 2 THOMAS MATTHEW BINGHAM Seventh Defendant AB BY GUARDIAN AD LITEM WX Eighth Defendant CD BY GUARDIAN AD LITEM YZ Ninth Defendant JOCELYN ANNE YOUNG & MADELIENE CLAIRE YOUNG Plaintiffs by counterclaim WAYNE BINGHAM IN HIS CAPACITY AS ADMINISTRATOR OF THE ESTATE OF MARIE LOUISE BINGHAM (DEC) Defendant by counterclaim Catchwords: Probate proceedings - Wills - Deceased estate - Compromise reached and discontinuance of claim and counterclaim sought by consent - Discontinuance of an action against persons under disability - Whether leave required under the Rules of the Supreme Court 1971 (WA) Order 70 r 10 - Two defendants propose to bring a separate application for a common form grant of probate in the Court's non-contentious probate jurisdiction - Undertakings to apply for a common form grant provided - Turns on own facts Legislation: Rules of the Supreme Court 1971 (WA) Order 70 r 10, Order 73 r 18 Result: Probate proceedings discontinued Category: B -- 2 of 23 -- [2026] WASC 282 Page 3 Representation: Counsel: Plaintiff : SD Hicks First Defendant : No appearance Second Defendant : ARW Bower Third Defendant : ARW Bower Fourth Defendant : No appearance Fifth Defendant : No appearance Sixth Defendant : No appearance Seventh Defendant : No appearance Eighth Defendant : D Rice Ninth Defendant : No appearance Plaintiffs by counterclaim : ARW Bower Defendant by counterclaim : SD Hicks Solicitors: Plaintiff : Lawfield Legal Practice First Defendant : No appearance Second Defendant : Solomon Hollett Lawyers Third Defendant : Solomon Hollett Lawyers Fourth Defendant : No appearance Fifth Defendant : No appearance Sixth Defendant : No appearance Seventh Defendant : No appearance Eighth Defendant : Hammond Legal Ninth Defendant : No appearance Plaintiffs by counterclaim : Solomon Hollett Lawyers Defendant by counterclaim : Lawfield Legal Practice -- 3 of 23 -- [2026] WASC 282 Page 4 Cases referred to in decision: Bailey v Bailey (1924) 34 CLR 558 Gangemi v De Vita [2014] WASC 306 Holland by his next friend Roberta Ashworth Holland v The Metropolitan Health Services Board [2001] WASCA 155 In the Goods of George Watts (Deceased) (1837) 163 ER 208 Jarvinen v Minister for Health (WA) (1998) 19 SR (WA) 338 Pereira v Pereira [2025] WASC 138 Re Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 Re Przychodski [2016] VSC 781 Re Vallance; Harper v Vallance [2018] VSC 573 Rosebridge Nominees Pty Ltd (In Liq) v Commonwealth Bank of Australia [2018] WASCA 112 Scates v State Administrative Tribunal of Western Australia [2011] WASC 319 Surrey Insurance Co Ltd v Nagy [1968] SASR 437 Vandeleur v Franich [1991] 1 Qd R 481 Wheatley v Edgar [2003] WASC 118 -- 4 of 23 -- [2026] WASC 282 STRK J Page 5 STRK J: Introduction 1 These reasons concern a probate action concerning the estate of the late Pamela June Grantham, who died on 6 January 2023. As was recorded in the originating process, by the proceeding Marie Louise Bingham as plaintiff sought the following relief: 1. That this Honourable Court pronounce against the force and validity of the pretended will of the late Pamela June Grantham (the deceased) dated 13 July 2021 (the pretended will); 2. That the court pronounce for the force and validity of the will of the late Pamela June Grantham dated 31 March 2014 in solemn form; 3. The second to ninth defendants or such of them that do not abide by the outcome of this action pay the plaintiffs costs of this action; 4. The estate do pay the plaintiffs costs of this action on a trustee basis; 5. Such other order as this court shall think fit; 2 The probate action was commenced as against nine defendants, described in the originating process as follows: (a) Margaret Anne Young, a child of the deceased and the other named executor in the will; (b) Jocelyn Anne Young a grandchild of the deceased and an executor named in the pretended will and a beneficiary under the pretended will; (c) Madeleine Claire Young a grandchild of the deceased and an executor named in the pretended will and a beneficiary under the pretended will; (d) Andrew Raymond Bell a grandchild of the deceased and a beneficiary under the pretended will; (e) Gabrielle Marie Young a grandchild of the deceased and a beneficiary under the pretended will; (f) Jodi Anne Bingham a grandchild of the deceased and a beneficiary under the pretended will; -- 5 of 23 -- [2026] WASC 282 STRK J Page 6 (g) Thomas Matthew Bingham a grandchild of the deceased and a beneficiary of the pretended will; (h) AB a great grandchild of the deceased and a beneficiary under the pretended will, a minor by his maternal grandfather as guardian ad litem; (i) CD a great grandchild of the deceased and a beneficiary under the pretended will, a minor by his father as guardian ad litem. 3 As a number of the parties to the probate action share a common surname, in these reasons I will refer to them by their given names. I will refer to the late Pamela June Grantham as the deceased. I do so only for ease of reference. No disrespect is intended. 4 In these reasons I will also refer to the will of the deceased dated 13 July 2021 (described in the originating process as 'the pretended will') as the 2021 Will; and the will of the deceased dated 31 March 2014 (described in the originating process as 'the will') as the 2014 Will. 5 Appearances were filed on behalf of the second and third defendants, Jocelyn and Madeliene, who have common representation. 6 On 15 November 2023, it was ordered that unless Margaret, Andrew, Gabrielle, Jodi, Thomas, AB and CD enter an appearance within 14 days from the date of the order, Marie was at liberty to proceed on an undefended basis against them, and they would not be permitted to take any step in the proceeding or appear before the Court unless leave was first granted.1 7 An appearance was subsequently filed on behalf of AB by his guardian ad litem WX. AB by his guardian ad litem was represented by a legal practitioner. An appearance was not entered for any named defendant save for Jocelyn, Madeliene and AB by his guardian ad litem. 8 A defence and counterclaim was filed on behalf of Jocelyn and Madeliene. In short, they denied that Marie was entitled to the relief sought or any relief, and by the counterclaim Jocelyn and Madeliene moved for an order that the Court pronounce the force and validity of the 2021 Will in solemn form of law. No pleading was filed on behalf of AB. 1 Order 5 of the orders made on 15 November 2023 by a case management registrar. -- 6 of 23 -- [2026] WASC 282 STRK J Page 7 9 At the request of Marie, the Court issued six subpoenas to produce documents, which were issued to various health providers and legal practitioners. 10 Although the action was referred to mediation, a mediation did not take place and a review of the Court's record revealed that the mediation was adjourned sine die.2 11 Marie died on 25 February 2024. By an order made in October 2024 pursuant to the Rules of the Supreme Court 1971 (WA) O 18 r 7(2), 'Wayne Bingham, in his capacity as administrator of the estate of Marie Louise Bingham (dec)' was substituted in the probate action as the plaintiff and defendant by counterclaim. 12 By the consent of all represented parties, pursuant to the Rules of the Supreme Court O 73 r 18, leave was sought by Wayne to discontinue the probate action, and by Jocelyn and Madeliene to discontinue their counterclaim. Further, all represented parties consented to an order that Wayne pay the costs of Jocelyn and Madeliene fixed in the sum of $21,600; Wayne pay AB's costs fixed in the sum of $3,000; and that otherwise there be no orders as to costs and all extant costs orders would be dismissed. 13 The first memorandum of proposed consent orders was followed by a second memorandum which promoted orders in substantively the same terms, save that the following additional order was sought: Pursuant to O 70 r 10 [of the Rules of the Supreme Court], the eighth defendant have leave to dispense with the requirement to obtain and provide independent counsel's opinion in support of these orders. 14 That order was promoted in circumstances where the question had been raised as to the operation of the Rules of the Supreme Court O 70 r 10 (which concerns, among other things, settlement of an action against a person under disability). 15 The proposed orders were supported by an affidavit sworn by Jocelyn and Madeliene and a written outline of submissions filed on their behalf. The Court was informed that the discontinuances were sought on the common understanding that once the probate proceedings had been concluded, Jocelyn and Madeliene would seek a common form grant of probate of the 2021 Will. Among other things, Jocelyn 2 Order 1 of the orders made on 1 February 2024 by a case management registrar; order 1 of the orders made on 12 April 2024 by a case management registrar. -- 7 of 23 -- [2026] WASC 282 STRK J Page 8 and Madeliene deposed that they supported the proposed discontinuances, which would enable them to seek a common form grant of probate of the 2021 Will. 16 Discontinuance of Jocelyn and Madeliene's defence and counterclaim without the Court making a grant of probate with respect to the 2021 Will in this probate action was promoted in a context where the Court was informed that the original 2021 Will was not in the possession of the parties. Marie had deposed in her affidavit of scripts to her belief that the 2021 Will was held by Amanda Liston Legal, the lawyers who had drafted the 2021 Will.3 Jocelyn and Madeliene in their affidavit of scripts deposed that Amanda Liston of Amanda Liston Legal had informed them that she held the 2021 Will.4 The Court was informed by counsel for Jocelyn and Madeliene that Amanda Liston Legal had asserted some kind of lien over the 2021 Will.5 17 Alternative orders were proposed on behalf of Jocelyn and Madeliene, in the event that the Court was not prepared to make orders in the form proposed by consent.6 18 The alternative orders contemplated that Jocelyn and Madeliene would file an application for the issue of a subpoena requiring the production of the 2021 Will pursuant to the Rules of the Supreme Court O 73 r 20(2) together with a supporting affidavit; that within seven days of Jocelyn and Madeliene obtaining the 2021 Will (whether by production of the 2021 Will to the Registry in compliance with any subpoena or otherwise), Jocelyn and Madeliene would be obliged to file a motion for a common form grant of probate of the 2021 Will together with a supporting affidavit; and subject to the making of a grant of probate of the 2021 Will in common form, the plaintiff would have leave to discontinue this action and the plaintiffs by counterclaim would have leave to discontinue their counterclaim pursuant to the Rules of the Supreme Court O 73 r 18. 19 The same form of orders as reflected in the second memorandum concerning leave to dispense with the requirement for an independent legal counsel's opinion with respect to AB, and costs, were otherwise promoted. 3 Affidavit of scripts of ML Bingham sworn 4 September 2023 par 2(a). 4 Affidavit of scripts of JA Young and MC Young sworn 19 October 2023 par 3(i). 5 ts 3 (17 December 2024). 6 Minute of proposed orders filed on 24 December 2024. -- 8 of 23 -- [2026] WASC 282 STRK J Page 9 20 Despite requests having been made on behalf of Jocelyn and Madeliene, the 2021 Will remained in the possession of Amanda Liston Legal. 21 The represented parties were subsequently informed that while the probate action remained on foot, I would determine any subpoena application made. Further, they were informed that assuming the parties continued not to seek in the probate action a common form grant of probate of the 2021 Will, then: (a) upon the 2021 Will being delivered to the Registry pursuant to a subpoena and upon receipt of an undertaking by Jocelyn and Madeliene that they would forthwith apply for a common form grant of probate of the 2021 Will in the non-contentious probate jurisdiction of the Court, orders would be made in terms that the Court understood remained the agreed position of the parties with respect to discontinuance and costs; and (b) if a subpoena application was not made (as possession of the 2021 Will was otherwise to be secured from Amanda Liston Legal), then upon receipt of an undertaking by Jocelyn and Madeliene that they would forthwith apply for a common form grant of probate of the 2021 Will in the non-contentious probate jurisdiction of the Court, orders would be made in terms that the Court understood remained the agreed position of the parties with respect to discontinuance and costs.7 22 An application was subsequently made for the issue of a subpoena and that application was served on the Proper Officer Amanda Liston Legal Pty Ltd.8 Following conferral, orders were made by consent on 2 July 2026 which included: 1. Amanda Liston Legal Pty Ltd shall make the original 13 July 2021 Will and original death certificate of Pamela June Grantham available for collection by either the second defendant or the third defendant … within seven (7) days. 2. The special appointment listed at 10.30 am on 2 July 2026 be vacated. … 7 Communication sent to the represented parties from Chambers dated 24 April 2026. 8 Chamber summons filed on 10 June 2026. -- 9 of 23 -- [2026] WASC 282 STRK J Page 10 23 On 1 July 2026 Jocelyn and Madeliene filed an undertaking in favour of the parties to the action and to the Court to the effect that: (a) upon Jocelyn and Madeliene obtaining the 2021 Will; and (b) upon the Court issuing final orders in a form foreshadowed by the Court on 24 April 2026, Jocelyn and Madeliene will apply for a common form grant of the 2021 Will in the non-contentious probate jurisdiction of this Court. 24 On 10 July 2026 a further memorandum of proposed consent orders, signed on behalf of all of the represented parties, was filed. They moved for orders in the following terms: 1. The spelling of the name of the third defendant be corrected to Madeliene Claire Young. 2. Pursuant to the Rules of the Supreme Court 1971 (WA) Order 73 r 18, the plaintiff have leave to discontinue this probate action. 3. Pursuant to the Rules of the Supreme Court Order 73 r 18, the plaintiffs by counterclaim have leave to discontinue their counterclaim made in this probate action. 4. The plaintiff shall pay the costs of the second and third defendants fixed in the sum of $21,600.00. 5. The plaintiff shall pay the costs of the eighth defendant fixed in the sum of $3,000.00. 6. There otherwise be no orders as to costs and all extant costs orders shall be dismissed. 25 For the reasons set out below, on the basis of the undertaking provided by Jocelyn and Madeliene on 1 July 2026, orders were made on 10 July 2026 as promoted by the parties. These reasons have been prepared so as to reflect the correct spelling of the third defendant's name and to anonymise the names of the two infant defendants. -- 10 of 23 -- [2026] WASC 282 STRK J Page 11 Overview of the probate action The plaintiff's claim 26 By way of overview, the plaintiff's claim, as pleaded, was as follows.9 27 The deceased made a will bearing the date 31 March 2014 (the 2014 Will). 28 Marie and Margaret were the only daughters of the deceased, and were named as the executors in the 2014 Will. 29 By the 2014 Will the deceased left her estate to her children, Marie and Margaret, in equal shares. Further, it was pleaded that the 2014 Will was attested and signed as required by law and rational on the face of it. 30 It was acknowledged that the deceased made a will bearing the date 13 July 2021 (the 2021 Will), and that as at the date of the 2021 Will: (a) Margaret had four children, Jocelyn, Madeliene, Andrew and Gabrielle; (b) Marie had two children, Jodi and Thomas; and (c) AB and CD were the only great grandchildren of the deceased. 31 Jocelyn and Madeliene were named as the executors in the 2021 Will, and the deceased's children, grandchildren and great grandchildren were named as residuary beneficiaries. 32 It was pleaded that under the 2021 Will the deceased: (a) devised her property at 834 Paterson Road, Ravenswood (described as the 'house block'), then worth approximately $1.25m, to Jocelyn and Madeliene in equal shares; (b) mistakenly bequeathed the residue of her estate, then worth about $2m, to Marie and all defendants in equal shares instead of to Marie, Margaret, Andrew, Gabrielle, Jodi, Thomas, AB and CD in equal shares. 9 Plaintiff's amended statement of claim filed 1 September 2023. -- 11 of 23 -- [2026] WASC 282 STRK J Page 12 33 It was pleaded that the 2021 Will was irrational on its face, by reason that (among other things) without any explanation by that will the deceased all but disinherited her daughters. It was also pleaded that: (a) the deceased was at all material times an alcoholic, and liable to drinking bouts which prevented her mind from acting in a natural, regular and ordinary manner; (b) at the time the deceased made the 2021 Will the deceased thought the house block was worth about half of its actual worth; (c) at the time the deceased signed the 2021 Will the deceased was suffering from progressive dementia; (d) concern and suspicion had arisen in that Jocelyn and Madeliene had refused to consent to the release of the file of the deceased's lawyer relating to instructions for the preparation of the 2021 Will or any of the attesting witnesses notes to Marie; (e) there was a lack of testamentary capacity, that is, in the premises the deceased was not of sound mind memory and understanding when she signed the 2021 Will, alternatively there were grounds that excited concern as to the capacity of the deceased to make the 2021 Will; and (f) further or alternatively, there was a lack of knowledge and approval, that is, the deceased did not know and approve the contents of the 2021 Will, alternatively there were circumstances that excited suspicion that the deceased did not know and approve the contents of the 2021 Will. The second and third defendant's defence and counterclaim 34 As is noted above, a defence and counterclaim was filed on behalf of Jocelyn and Madeliene. Theirs was the only filed defence to Marie's claim. In short, they denied that Marie was entitled to the relief sought, or any relief. 35 Among other things, they pleaded that the 2021 Will: (a) was prepared by Amanda Liston Legal on instructions from the deceased; -- 12 of 23 -- [2026] WASC 282 STRK J Page 13 (b) was attested and executed in conformity with the Wills Act 1970 (WA); (c) was executed by the deceased in the presence of Amanda Liston and Candice Clair Jonker both care of 197 Mandurah Terrace, Mandurah Western Australia; and (d) revoked all of the deceased's previous testamentary documents, including the 2014 Will. 36 Further, they denied that the 2021 Will was irrational on its face, and that the deceased was at all material times an alcoholic and liable to drinking bouts which prevented her mind from acting in a natural, regular and ordinary manner. 37 As to Marie's plea that the deceased was suffering from progressive dementia, while this was not admitted, Jocelyn and Madeliene pleaded that if the deceased was suffering from dementia at the time of making the 2021 Will, the degree of dementia from which she was suffering was insufficient to affect her testamentary capacity. 38 By way of counterclaim, Jocelyn and Madeliene sought an order that the Court pronounce the force and validity of the 2021 Will in solemn form of law; and an order pursuant to s 50 of the Wills Act rectifying cl 3 of the 2021 Will by removing the words 'her children' immediately following the words 'Margaret Ann Young'. 39 In the reply filed on behalf of Marie, there was largely a joinder of issue on the defence and counterclaim. The evidence 40 No evidence was filed in the probate action beyond the affidavit of scripts made by Marie; the affidavit of scripts made by Jocelyn and Madeliene; various affidavits of service; the affidavit made by Jocelyn and Madeliene in support of the discontinuances by consent; and the affidavit filed in support of the subpoena application. 41 As was observed on behalf of Jocelyn and Madeliene, none of the evidence filed casted any doubt on the testamentary capacity of the deceased. -- 13 of 23 -- [2026] WASC 282 STRK J Page 14 Order 73 of the Rules of the Supreme Court 42 The probate of a will may be granted in common form or in solemn form. There is a significant difference between the two. The proof required to obtain a grant in solemn form differs to that required for a grant in common form. Further, a grant of probate in common form is revocable. On the other hand, the circumstances in which a grant in solemn form may be revoked are limited.10 43 Order 73 of the Rules of the Supreme Court applies to probate causes and matters, and the rules of Court generally apply to those causes and matters subject to the provisions of O 73.11 44 For the purposes of the Rules of the Supreme Court a probate action means an action for the grant of probate of the will, or letters of administration of the estate of a deceased person or for the revocation of such a grant or for a decree pronouncing for or against the validity of an alleged will, not being an action which is non-contentious or common form probate business.12 Therefore, this action is a probate action for the purposes of O 73. 45 In a probate action, a party opposing a will may, with that party's defence, give notice to the party propounding the will that the opposing party merely insists on the will being proved in solemn form, and only intends to cross-examine the witnesses produced to support the will and may thereupon do so and, if the opposing party does not participate further in the action, the opposing party shall not be liable to pay the costs of that other party unless the Court considers that there was no reasonable ground for opposing the will.13 In this probate action, none of the defendants adopted such an approach. Instead, in this case: (a) the second and third defendant (Jocelyn and Madeliene) defended the plaintiff's claim and prosecuted a counterclaim; (b) the eighth defendant (AB) filed an appearance and did not file any defence in the probate action; and (c) the first, fourth to seventh and ninth defendant did not file an appearance in the probate action. 10 Wheatley v Edgar [2003] WASC 118 [18], cited in Pereira v Pereira [2025] WASC 138 [38]. 11 Rules of the Supreme Court O 73 r 1(1). 12 Rules of the Supreme Court O 73 r 1(2). 13 Rules of the Supreme Court O 73 r 15. -- 14 of 23 -- [2026] WASC 282 STRK J Page 15 46 In O 73, there are rules which govern the discontinuance and compromise of probate actions. They are as follows: 18. Discontinuance (1) Order 23 does not apply to a probate action. (2) Where at any stage of the proceedings in a probate action the plaintiff or any party who has entered an appearance therein applies by summons for an order for discontinuance of the action, the Court may so order on such terms as to costs and otherwise as it thinks just and may further order that a grant of probate of the will or letters of administration of the estate of the deceased person, which is the subject of the action be made to the person entitled thereto. 19. Compromise Where at any stage of the proceedings in a probate action the parties agree to a compromise, the action may, with the leave of the Court, be set down for trial. Order 70 of the Rules of the Supreme Court 47 Order 70 of the Rules of the Supreme Court concerns disability and relevantly provides that for the purposes of O 70, a person under disability means (among other things) a person who is an infant.14 48 Although not recorded in any affidavit, the Court understands that the eighth and ninth defendants (AB and CD) are persons under disability in that they are under the age of 18 years. Consistent with the requirement in O 70 r 2(1)(b) and r 3, AB filed a notice of appearance by his guardian ad litem and acts by a solicitor. There is no indication on the Court record that the special provisions for probate actions with respect to persons under disability were satisfied with respect to either AB or CD.15 49 Order 70 r 10 of the Rules of the Supreme Court concerns settlement and compromises of an action by a person under disability and provides as follows: 10. Settlement etc. of action by person under disability (1) No settlement or compromise, and no acceptance of money paid into court, whenever entered into or made, in any cause or 14 Rules of the Supreme Court O 70 r 1. 15 Rules of the Supreme Court O 70 r 4. -- 15 of 23 -- [2026] WASC 282 STRK J Page 16 matter (other than an appeal to the Court of Appeal) in which there is a claim by or on behalf of or against a person under disability, is valid unless it is approved by the Court. (2) An application for approval under subrule (1) — (a) if made before the hearing of a cause or matter, must be by summons in chambers; (b) if made during the trial of an action or issue, must be to the trial judge on motion, and must be supported by affidavit and by the opinion of an independent counsel; but the Court may dispense with the necessity of obtaining counsel's opinion. (3) In this rule settlement includes an acceptance of an offer to consent to judgment. 50 As was observed by the Court of Appeal in Holland by his next friend Roberta Ashworth Holland v The Metropolitan Health Services Board [2001] WASCA 155, if it was not approved by the Court under O 70 r 10, the discontinuance of an action by a plaintiff in circumstances where the plaintiff is a person under disability may be a nullity, or at least, liable to be set aside.16 It follows that the same consequence would befall a discontinuance of a counterclaim where the plaintiff by counterclaim is a person under disability and the discontinuance was not approved by the Court under O 70 r 10. The submissions made on behalf of the second and third defendants 51 In support of the orders promoted by consent, the second and third defendants noted the power vested in the Court to order discontinuance of a probate action pursuant to the Rules of the Supreme Court O 73 r 18. 52 Counsel for Jocelyn and Madeliene referred to and sought to distinguish the decision of EM Heenan J in Wheatley v Edgar, which concerned an application which raised similar questions and associated issues as raised in this probate action. As to the application before EM Heenan J, his Honour recorded as follows at [1]: The applicants for the proof in solemn form of a will of the deceased, have applied by summons in chambers for a discontinuance of the action and for a grant of probate pursuant to RSC O 73 r 18 as a result 16 Holland by his next friend Roberta Ashworth Holland v The Metropolitan Health Services Board [38], citing Jarvinen v Minister for Health (WA) (1998) 19 SR (WA) 338, 341. -- 16 of 23 -- [2026] WASC 282 STRK J Page 17 of a compromise reached between the parties to the contentious proceedings. The important question of procedure which, therefore, arises is whether a grant of probate can or should be made in these circumstances and if so whether it should be a grant in common form or in solemn form of law. There are associated minor issues of whether or not the court should approve the proposed compromise on behalf of the second named second defendant who is yet to attain the age of majority, and whether the court should dispense with the requirement for obtaining independent counsel's opinion on whether the proposed compromise is in the interests of the infant second defendant. 53 His Honour in his reasons recounted the procedural history of the matter, and at [14] recorded that at a mediation conference conducted by the Court in the course of the contentious proceedings, an agreement between the parties, by their solicitors, was reached which, in effect, provided that there should be grant of probate in solemn form of a latter will, and that the counterclaim propounding an earlier will should be discontinued and that the costs of all the parties should be paid out of the estate. Among other things, it was also proposed that the need for counsel's opinion under Rules of the Supreme Court O 70 r 10(2) for the approval by the Court of the proposed compromise as it affected a defendant who remained under the age of 18 years at the date of the application and who defended the proceeding by his guardian ad litem, be dispensed with. 54 In the reasons for decision, his Honour described the approach appropriate to address the situation where there is an agreed resolution of contentious probate proceedings well before the trial of the action for proof in solemn form has commenced. Referring to Vandeleur v Franich [1991] 1 Qd R 481, at 484 to 485, EM Heenan J observed as follows:17 This passage obviously recognises that, when a compromise is reached between the parties to a contested action for proof in solemn form, it is open to the court to decree in favour of the will either in common form or in solemn form but, for solemn form to be decreed sufficient evidence to satisfy the minimum requirements for validity must be adduced and that this will require, at least, proof of due execution. This is entirely consistent with the other cases so far examined. There is also the significant observation that, whether or not there should be a decree in solemn form by the court in the event of a compromise will also depend on the circumstances of the particular case. 17 Wheatley v Edgar [25] - [28]. These principles have been cited numerous times, including in Re Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 [238]; Re Vallance; Harper v Vallance [2018] VSC 573 [51]; Gangemi v De Vita [2014] WASC 306 [12]. -- 17 of 23 -- [2026] WASC 282 STRK J Page 18 It is in this context that the provisions of Rules of the Supreme Court, O 73, r 18 and the acknowledged power for a court to grant probate in the event of a discontinuance, come to be examined. Clearly enough the rule recognises the power of the court to make a grant in the event of the discontinuance of part or all of an action for proof in solemn form, whether of the will propounded by the plaintiff or of some other will propounded on a counterclaim. However, whether the grant which might then be made should be a grant in solemn form or in common form would seem to depend on the circumstances of the individual case and, in particular, whom the grounds alleged for challenging the validity of the will propounded, the availability of evidence sufficient to prove due execution and at least raise a presumption of testamentary capacity in the absence of evidence to the contrary. Consistently with these principles I consider that a grant of probate in common form could be made upon the discontinuance, by leave of the court, of proceedings for proof in solemn form where, upon examination, the opposition to the grant discloses only an interest insufficient to entitle the objector to oppose a grant; or where no appearance has been entered and the party commencing proceedings does not desire to proceed to obtain a grant in solemn form - see Mortimer on Probate Law and Practice (1911) at 543-544. There may possibly also be other situations where nothing has been shown which would have prevented the grant of probate in common form had proceedings for proof in solemn form of law not been commenced. By contrast, even where there is the consent or compromise of the parties, but there remain doubts, for example, about the adequacy of the testator's capacity, I am inclined to the view that a grant in common form should not be made and, instead, the action should be listed for a short hearing on the application for proof in solemn form pursuant to O 73 r 19 when, presumably, the party propounding the will will be able to adduce evidence at least of due execution by a person of an age competent to make a valid will. 55 On behalf of Jocelyn and Madeliene, it was acknowledged that what the parties sought to do by consent required consideration as to whether a grant of probate can or should be made, and if so whether it should be a grant in common form or in solemn form of law. It was further noted that this case gave rise to the associated issue of whether the Court should approve of the proposed compromise given the effect of Rules of the Supreme Court O 70 r 10.18 56 However, counsel noted that unlike the parties in Wheatley v Edgar, the parties in this probate action did not invite the Court to order a grant of probate of either the 2014 Will or the 2021 Will in solemn form. Rather, the parties proposed that subject to the discontinuance of 18 Second and third defendants' outline of submissions filed on 21 November 2024, par 9. -- 18 of 23 -- [2026] WASC 282 STRK J Page 19 this proceeding, Jocelyn and Madeliene would prepare and file an application for a common form grant of probate.19 57 In support of the making of the orders promoted by consent it was further noted that: (a) a will, properly executed is, in the absence of evidence to the contrary, presumed to have been made by a person competent and understanding;20 (b) in judging the question of testamentary capacity, the Court does not overlook the fact that many wills are made by people of advanced years, some of whom will display slowness, illness, feebleness, and eccentricity to a greater extent than persons of a younger age. However, these characteristics are not ordinarily sufficient to disentitle the testator of the right to dispose of his or her property by will;21 (c) in this case, none of the evidence filed casted any doubt on the testamentary capacity of the deceased;22 and (d) a grant of probate in common form can be made upon the discontinuance, by leave of the Court, in proceedings for proof in solemn form where there are no doubts concerning the testamentary capacity of the deceased.23 58 In Wheatley v Edgar, EM Heenan J considered there to be at least two impediments to the grant of probate in common form on the application before his Honour to discontinue. 59 The first was that, under the terms of the agreement reached between the parties at the mediation conference, the plaintiffs were to obtain a grant in solemn form. His Honour noted that their acceptance of a grant in common form was not an alternative that his Honour wished to rush to accept as an adequate solution. 60 The second objection identified by his Honour was that an affidavit of a registered medical practitioner remained on the Court file 19 Second and third defendants' outline of submissions filed on 21 November 2024, par 10. 20 Second and third defendants' outline of submissions filed on 21 November 2024, par 11, citing Wheatley v Edgar [24]. 21 Second and third defendants' outline of submissions filed on 21 November 2024, par 12, citing Bailey v Bailey (1924) 34 CLR 558. 22 Second and third defendants' outline of submissions filed on 21 November 2024, par 13. 23 Second and third defendants' outline of submissions filed on 21 November 2024, par 14, citing Wheatley v Edgar [28]. -- 19 of 23 -- [2026] WASC 282 STRK J Page 20 in the application for probate in common form, which affidavit addressed a lack of testamentary capacity. His Honour observed that unless the last will was properly proved, that affidavit seemed to be an insuperable obstacle to a common form grant.24 61 In this case, Jocelyn and Madeliene resisted proceeding to a trial on an undefended basis for a grant in solemn form of the 2021 Will. They submitted that this case could be distinguished from that which was considered by EM Heenan J in Wheatley v Edgar, as in this case: (a) the parties did not seek to obtain within the probate action either a grant of probate in solemn proof of law or common form by consent; and (b) no evidence had been filed casting doubt upon the testamentary capacity of the deceased, nor the validity of the 2021 Will.25 62 As to the position of AB and CD, it was further noted that it was not proposed that either would compromise their entitlements under the 2021 Will. Rather, each would enjoy an expectation that they would receive what the deceased wished for them to receive under the terms of her 2021 Will.26 Further, it was submitted that as no settlement or compromise was to be made of the minor parties' substantive entitlements under the 2021 Will, the need for Court approval of a compromise pursuant to the Rules of the Supreme Court O 70 r 10 was not enlivened.27 Disposition 63 The purpose of the probate jurisdiction is 'ensuring that the testamentary intentions of a deceased person are carried out and that the beneficiaries receive what is due to them'.28 64 I accepted that it would not be possible for parties by consent to make a will not a will; and nor would it be possible for an invalid will to be made a will by consent.29 In this case, the parties did not promote either course. As is recorded above, the parties did not invite the Court to order a grant of probate of either the 2014 Will or the 2021 Will in solemn form. Rather, the parties proposed that subject to the 24 Wheatley v Edgar [4], [29]. 25 Second and third defendants' outline of submissions filed on 21 November 2024, par 15. 26 Second and third defendants' outline of submissions filed on 21 November 2024, par 17. 27 Second and third defendants' outline of submissions filed on 21 November 2024, par 18. 28 Re Vallance; Harper v Vallance [46], quoting Re Przychodski [2016] VSC 781 [15]. 29 Wheatley v Edgar [30], referring to In the Goods of George Watts (Deceased) (1837) 163 ER 208. -- 20 of 23 -- [2026] WASC 282 STRK J Page 21 discontinuance of the probate action (both the claim and counterclaim), Jocelyn and Madeliene would prepare and file an application for a common form grant of probate of the 2021 Will in the Court's non- contentious probate jurisdiction. 65 It was sought to be emphasised on behalf of Jocelyn and Madeliene that the parties in this case did not seek to obtain a grant of probate in solemn proof of law or common form by consent in this probate action.30 That is, the parties did not move for the Court to make any form of grant upon the discontinuance pursuant to the power in the Rules of the Supreme Court O 73 r 18(2). 66 As is noted above, EM Heenan J recorded in Wheatley v Edgar that he considered there to be at least two impediments to the grant of probate in common form on an application to discontinue. In my view, such impediments are not able to be avoided by the election to discontinue and the making of a fresh application for a grant of probate in the non-contentious probate jurisdiction of the Court. That is, if it would not be appropriate for a common form grant to be made by a judge in a probate action upon a discontinuance pursuant to the Rules of the Supreme Court O 73 r 18(2), then it would not be open to the parties to discontinue a probate action and then apply by a separate application made in the non-contentious probate jurisdiction of the Court for a common form grant from a registrar. 67 That said, in all of the circumstances of this case, I accepted that the impediments identified by EM Heenan J in Wheatly v Edgar did not arise in this case. 68 First, in this case, the parties did not seek a grant of probate in solemn proof of law by consent. 69 Secondly, as was acknowledged by EM Heenan J, there may possibly be a situation where nothing has been shown which would have prevented the grant of probate in common form had proceedings for proof in solemn form of law not been commenced.31 70 I accepted that this was such a case because no evidence had been filed casting doubt upon the testamentary capacity of the deceased, nor the validity of the 2021 Will. 30 Second and third defendants' outline of submissions filed on 21 November 2024, par 15(a), outlined at [57(a)] of these reasons. 31 Wheatley v Edgar [28]. -- 21 of 23 -- [2026] WASC 282 STRK J Page 22 71 In this case, the Court record reveals that various subpoenas were issued. While the parties would have had the opportunity to interrogate the documents produced, those documents were not put into evidence. Instead, there was an election made on behalf of the administrator of Marie's estate not to prosecute the claim with respect to the earlier 2014 Will. 72 No evidence was filed in the probate action beyond that described at [40] of these reasons. Therefore, in this case, there is no insurmountable obstacle to the making of a common form grant. 73 Finally, I accepted that in the circumstances of this case, the discontinuance of the action against a person under disability (AB and CD) could occur without leave first being obtained under the Rules of the Supreme Court O 70 r 10. The interests of AB and CD were not intended to be at all compromised by the discontinuance. Indeed, they are beneficiaries named only under the 2021 Will, and there was no longer any move to have this Court pronounce against its force and validity, in favour of the 2014 Will. The discontinuance of Marie's claim against them would only be for their benefit, and no counterclaim had been prosecuted on behalf of either of AB or CD. Indeed, there is no indication on the Court record that the special provisions for probate actions with respect to persons under disability had been satisfied with respect to either AB or CD,32 and while an order was made granting Marie the liberty to proceed on an undefended basis as against the defendants who had not entered an appearance (to which AB through his guardian ad litem subsequently did),33 there was nonetheless a question as to whether any judgment of this Court might be set aside as against AB or CD due to such noncompliance with the Rules of the Supreme Court.34 Their interests were otherwise served by the undertaking given by Jocelyn and Madeliene in their favour (and to the Court) that Jocelyn and Madeliene would apply for a common form grant of the 2021 Will. 32 Rules of the Supreme Court O 70 r 4, r 5. 33 See [6] above; Rules of the Supreme Court O 73 r 13(2). 34 A failure to comply with the Rules of the Supreme Court is an irregularity, and the judgment, proceedings or document which is irregular may be set aside: O 2 r 1. See Surrey Insurance Co Ltd v Nagy [1968] SASR 437, 439 where it was held that an appearance entered by a person under disability (being a child) without the appointment of a guardian ad litem was irregular and was set aside. See also Scates v State Administrative Tribunal of Western Australia [2011] WASC 319 [14] - [16]. However, given the nature of a probate proceeding for a grant of probate in solemn form involving the exercise of an independent judgment by the Court, there is a question whether prejudice arises from the mere failure to ensure the proper representation of minors, without the demonstration of prejudice or injustice: see Rosebridge Nominees Pty Ltd (In Liq) v Commonwealth Bank of Australia [2018] WASCA 112 [50]. -- 22 of 23 -- [2026] WASC 282 STRK J Page 23 Conclusion and orders 74 In addition to the Court making an order correcting the spelling of Madeliene's name, and on the basis of the undertaking provided by Jocelyn and Madeliene, for these reasons orders were made in the following terms: 1. Pursuant to the Rules of the Supreme Court Order 73 r 18, the plaintiff have leave to discontinue this probate action. 2. Pursuant to the Rules of the Supreme Court Order 73 r 18, the plaintiffs by counterclaim have leave to discontinue their counterclaim made in this probate action. 3. The plaintiff shall pay the costs of the second and third defendants fixed in the sum of $21,600. 4. The plaintiff shall pay the costs of the eighth defendant fixed in the sum of $3,000. 5. There otherwise be no orders as to costs and all extant costs orders shall be dismissed. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. DS Associate to the Honourable Justice Strk 10 JULY 2026 -- 23 of 23 --