TE PAA -v- EVANS [2026] WASC 214

[2026] WASC 214 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : TE PAA -v- EVANS [2026] WASC 214 CORAM : WHITBY J HEARD : 19 MAY 2026 DELIVERED : 2 JUNE 2026 FILE NO/S : CIV 2181 of 2024 BETWEEN : MEREANA TE PAA Plaintiff AND GRAEME ROBERT EVANS First Defendant BENJAMIN DYLAN EVANS Second Defendant JUSTIN LUKE EVANS Third Defendant DWAYNE BRADLEY EVANS Fourth Defendant JAKE TAHI TE PAA Fifth Defendant GRAEME ROBERT EVANS Plaintiff by counterclaim MEREANA TE PAA Defendant by counterclaim -- 1 of 22 -- [2026] WASC 214 Page 2 Catchwords: Wills - Probate - Proof in solemn form - Informal will - Whether court should pronounce informal will in solemn form - Section 32 of the Wills Act 1970 (WA) - Lost will - Whether the deceased intended the document to have present operation as his will - Copy of informal will to be admitted to probate - Grant limited until original will is proved Legislation: Administration Act 1903 (WA) Wills Act 1970 (WA) Result: Grant of probate in solemn form of copy of informal will made in February 2023 limited until the original or a more authentic copy of that informal will is proved Category: B Representation: Counsel: Plaintiff : C Breheny First Defendant : P MacMillan Second Defendant : No appearance Third Defendant : No appearance Fourth Defendant : No appearance Fifth Defendant : No appearance Plaintiff by counterclaim : P MacMillan Defendant by counterclaim : C Breheny Solicitors: Plaintiff : Benz Legal First Defendant : Friedman Lurie Singh & D'Angelo (South Lake) Second Defendant : Chris Garvey Lawyer -- 2 of 22 -- [2026] WASC 214 Page 3 Third Defendant : Chris Garvey Lawyer Fourth Defendant : Chris Garvey Lawyer Fifth Defendant : Chris Garvey Lawyer Plaintiff by counterclaim : Friedman Lurie Singh & D'Angelo (South Lake) Defendant by counterclaim : Benz Legal Case(s) referred to in decision(s): Briginshaw v Briginshaw (1938) 60 CLR 336 Cahill v Rhodes [2002] NSWSC 561 Dalton v Dalton [2008] WASC 56 Hatsatouris v Hatsatouris [2001] NSWCA 408 James David Deeks as Executor appointed in the Will v Alexander Howard Greenwood by his guardian ad litem Andrew Greenwood [2011] WASC 359 Larussa v Carr [2018] WASCA 127 Lindsay v McGrath [2016] 2 Qd R 160 McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434 Mitchell v Mitchell [2010] WASC 174 Oreski v Ikac [2008] WASCA 220 Powell v Dinwoodie [2012] WASC 139 Re Estate of Frederick Raymond Reeve Perryman [2003] WASC 191 Re Estate of Young, Ex Parte Young [2015] WASC 409 Re Yu [2013] QSC 322 Sugden v Lord St Leonards (1876) LR 1 PD 154 Thomson v Thomson [2012] WASC 429 Williams v Williams (1882) 20 ChD 659 -- 3 of 22 -- [2026] WASC 214 WHITBY J Page 4 WHITBY J: 1 Daniel Wiremu Evans was born on 17 November 1989. Daniel had four brothers: Benjamin Dylan Evans, Justin Luke Evans, Dwayne Bradley Evans and Jake Tahi Te Paa. Daniel's mother is Mereana Te Paa, his step-father is Robert 'Bob' Ian Morrison, and his father is Graeme Robert Evans. Given there are shared last names, I will refer to each of these individuals by their first names, with no disrespect intended. 2 When Daniel was four years old, he was in a motor vehicle accident and sustained serious injuries. As a result, Daniel suffered from long-term ill health. In 2013, Daniel received compensation for his injuries of just over $3 million. These funds were held on trust for Daniel by Perpetual Trustee Company Limited (Perpetual). In 2014, Perpetual purchased two properties in Collie on Daniel's behalf. Daniel lived in one of those properties. 3 From around October 2022, after he was diagnosed with kidney failure, Daniel received kidney dialysis three times a week at Busselton Hospital. On 13 February 2023, Daniel tragically died. Daniel's death was sudden and unrelated to his known health issues. 4 Daniel died without having signed a will. This action concerns who is entitled to Daniel's estate. Mereana seeks a grant of probate in solemn form of an unsigned, informal will. Graeme opposes that grant and says Daniel died intestate. 5 The circumstances surrounding the unsigned, informal will are these. On 18 January 2023, Daniel had a meeting with a solicitor, Mr Paul Lander, and gave instructions to Mr Lander to prepare a will for him. Daniel's instructions were that his mother Mereana be appointed executor of his will, and the residue of his estate be divided equally between his four brothers. On 3 February 2023, Mr Lander emailed Daniel a draft of Daniel's will, in pdf format. Mereana says that Daniel opened the email on his iPhone, read the will, approved of its contents, told others he was happy with his will and that Daniel intended that document to constitute his will (the Will). However, Daniel died unexpectedly without having signed the Will. 6 Following Daniel's death, Mereana and Daniel's brothers were unsuccessful in their attempts to access Daniel's iPhone, laptop, and email account in order to retrieve the Will. Mereana has not produced the Will to the court because the Will is unable to be retrieved from -- 4 of 22 -- [2026] WASC 214 WHITBY J Page 5 Daniel's iPhone. It is for this reason Mereana seeks a grant of probate in solemn form of a copy (the draft will prepared by Mr Lander, emailed to Daniel on 3 February 2023) of the Will, as she says the original of the Will is lost. Mereana seeks that order pursuant to s 32 of the Wills Act 1970 (WA) (Wills Act). 7 On 4 August 2025, the second to fifth defendants (Daniel's four brothers) filed a notice of intention to abide, stating they did not intend to take part in the proceedings and would accept any order made by the court other than as to costs. 8 If a grant of probate in solemn form of the informal will of Daniel is made, then each of Daniel's four brothers will receive a 25% share of Daniel's estate. However, if Daniel died intestate, then pursuant to s 14 of the Administration Act 1903 (WA), the estate would be distributed as follows: (a) $56,500 be shared equally between Graeme and Mereana; (b) Graeme and Mereana share equally in 50% of the residue; and (c) Benjamin, Justin, Dwayne and Jake share equally in 50% of the residue. 9 For the reasons that follow, I find that the copy of the Will should be admitted to probate in solemn form. Issues for determination 10 Counsel for Graeme submitted that it was only if I was satisfied that there was an informal will pursuant to s 32 of the Wills Act, that I need to consider whether the Will was lost for the purposes of determining the document over which probate ought to be granted. 11 I do not agree with that submission. Mereana is seeking probate of a lost informal will. The two issues are not, in my view, to be determined independently. 12 In Cahill v Rhodes,1 a case in which probate in solemn form of a lost will was sought, Campbell J summarised the law in relation to probate of lost wills, having regard to the NSW equivalent to s 32 of the Wills Act, as follows:2 1 Cahill v Rhodes [2002] NSWSC 561. 2 Cahill v Rhodes [55]. -- 5 of 22 -- [2026] WASC 214 WHITBY J Page 6 First, it must be established that there actually was a Will, or a document purporting to embody the testamentary intentions of a deceased person; second, it must be shown that that document revoked all previous Wills, third, the presumption that when a Will is not produced it has been destroyed must be overcome, fourth, there must be evidence of its terms, and fifth, there must be either evidence of due execution or that the deceased person intended the document to constitute his or her Will. (emphasis added) 13 Those parts of the summary that I have emphasised set out the alternate requirements that must be proved (in addition to the other three requirements) if the document sought to be proved as a will has not been executed in accordance with the Wills Act. That is what Mereana seeks to do in this case - prove a lost will that was not executed by Daniel in accordance with the Wills Act. The five requirements articulated in Cahill v Rhodes were adopted in this court by Heenan J in Powell v Dinwoodie.3 14 In this case, to succeed in obtaining a grant of probate in solemn form of Daniel's lost informal will, Mereana bears the onus of satisfying the court of the following five matters: (1) there is a 'document' that purports to embody Daniel's testamentary intentions; (2) the document revoked all previous wills; (3) the presumption that the document has been destroyed has been overcome; (4) there must be evidence of the terms of the document; and (5) Daniel intended the document to constitute his will. 15 As to the standard of proof, Mereana must prove those five matters on the balance of probabilities. I am however mindful of the principle that the more serious the finding, the more probative the evidence must be.4 Given that the legislation provides for the formal execution of a will, there must be clear and convincing evidence to allow me to dispense with those requirements.5 3 Powell v Dinwoodie [2012] WASC 139 [37] - [39]. 4 Briginshaw v Briginshaw (1938) 60 CLR 336 (at 361). 5 Cahill v Rhodes [56]. -- 6 of 22 -- [2026] WASC 214 WHITBY J Page 7 16 Before determining whether each of those five requirements have been met, I will set out the relevant legal principles that apply to informal wills. These principles provide the framework within which the evidence must be considered. Legal principles - informal wills 17 The court may dispense with the formalities specified in s 8 of the Wills Act and an informal will may be admitted to probate pursuant to s 32 of the Wills Act which provides: 32. Court may dispense with formal requirements (1) In this section and section 33 — document means any record of information including — (a) anything on which there is writing; (b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or (c) anything from which sounds, images or writings can be reproduced with or without the aid of anything else; or (d) a map, plan, drawing or photograph, and includes any part of a document within the meaning given by this subsection. (2) A document purporting to embody the testamentary intentions of a deceased person, even though it has not been executed in the manner required by this Act, constitutes — (a) a will of the person; or (b) an alteration to a will of the person; or (c) the revocation of a will of the person; or (d) the revival of a will or part of a will of the person, if the Supreme Court is satisfied that the person intended the document to constitute the person's will, an alteration to the person's will, the revocation of the -- 7 of 22 -- [2026] WASC 214 WHITBY J Page 8 person's will or the revival of a will or part of a will of the person, as the case may be. (3) In forming its view, the Supreme Court may have regard (in addition to the document) to any evidence relating to the manner of execution or testamentary intentions of the person, including evidence (whether admissible before the commencement of this section or otherwise) of statements made by the person. 18 In Re Estate of Frederick Raymond Reeve Perryman, Barker J said: 6 The fact that a document purporting to be a will is not signed and so does not conform with the requirements of s 8 of the Wills Act is merely one circumstance which enlivens the power of the Court to find that a particular document in fact constitutes a person's will. 19 In Hatsatouris v Hatsatouris, the New South Wales Court of Appeal held that the following questions must be answered in the affirmative for the court to dispense with the formal requirements of execution of a will under an equivalent provision to s 32 of the Wills Act: 7 (a) is there a document? (b) does the document purport to embody the testamentary intentions of the deceased? (c) does the evidence satisfy the Court that, either, at the time the document was brought into being, or, at some later time, the deceased, by some words or act, demonstrated that it was her, or his, then intention that the subject document should, without more on her or his part, operate as her, or his, Will? (emphasis in original) 20 The requirements were cited with approval and applied in Perryman,8 by the Court of Appeal in Oreski v Ikac,9 and in several other cases in this court. 21 In Dalton v Dalton,10 Beech J observed that the third condition, that the deceased 'by some words or act' demonstrated that the 6 Re Estate of Frederick Raymond Reeve Perryman [2003] WASC 191 (Perryman) [18]. 7Hatsatouris v Hatsatouris [2001] NSWCA 408 [56]. 8 Perryman [27]. 9 Oreski v Ikac [2008] WASCA 220 [52] - [53]. 10 Dalton v Dalton [2008] WASC 56 [47]. -- 8 of 22 -- [2026] WASC 214 WHITBY J Page 9 document was his will, was particularly relevant in cases where the purported will was an unsigned document not written by the deceased. This was the case in Hatsatouris v Hatsatouris, Perryman, and Oreski v Ikac and, for the reasons I will outline, is the case here. 22 In assessing this third requirement, in Lindsay v McGrath the Queensland Court of Appeal said that:11 Great care is to be taken in the evaluation of the relevant evidence. To satisfy the onus, the evidence must show more than that the particular document sets out the deceased's testamentary intentions or that it is consistent with other statements the deceased made about what he or she wanted to happen to the property upon death. The evidence must establish on the balance of probabilities that the deceased wanted the particular document to be his or her final Will, and did not want to make any changes to that document. … Documents which contain only preliminary, tentative or incomplete expression of a deceased's testamentary intentions, or which on the evidence are demonstrated to have been prepared for consideration, further thought, deliberation or possible revision, will not suffice for the purposes of [the informal will provision] as the evidence will not establish the document in question embodied the settled testamentary intentions of the deceased. The evidence at trial 23 Mereana adduced the following evidence at trial: (1) affidavit of scripts of Paul Anthony Lander sworn 16 April 2025; (2) affidavit of Paul Anthony Lander sworn 16 September 2025; (3) affidavit of Paul Anthony Lander sworn 24 November 2025; (4) affidavit of Jake Tahi Te Paa sworn 24 October 2025; (5) affidavit of Mereana Te Paa sworn 11 September 2025; (6) affidavit of Robert Ian Morrison sworn 11 September 2025; (7) affidavit of digital forensics expert Darren Andrew Michael sworn 21 January 2026, which includes the Independent Expert 11 Lindsay v McGrath [2016] 2 Qd R 160 [60] and [62] (Boddice J, Gotterson JA agreeing). -- 9 of 22 -- [2026] WASC 214 WHITBY J Page 10 Report of Mr Michael, dated 19 January 2026 (Michael Affidavit); and (8) affidavit of Justin Luke Evans sworn 8 May 2026. 24 Graeme did not seek to cross-examine any of the witnesses on their affidavit evidence. Factual findings based on the evidence adduced at trial 25 Based on the evidence adduced at trial on 19 May 2026, I make the following factual findings. 26 Daniel met with Mr Lander at Mr Lander's office on 18 January 2023. Mereana and Bob also attended that meeting. 27 During this meeting, Daniel told Mr Lander that: (1) he wanted to make sure that his property and money went to his brothers when he died; (2) he wanted everything to be left to his brothers; and (3) he wanted Mereana to be his executor. 28 Mr Lander drafted Daniel's will between 18 January 2023 and 1 February 2023. 29 On 3 February 2023, Mr Lander sent Daniel an email attaching a letter dated 2 February 2023 and a copy of Daniel's draft will (the Will). The Will appointed Mereana as executor and divided Daniel's estate between his four brothers equally. 30 At some time between 3 February 2023 and 13 February 2023, Daniel said to Mereana words to the effect of 'Mum, I'm happy with my will. Can you make me an appointment with Paul [Lander] so I can sign it?' 31 At some time between 3 February 2023 and 13 February 2023, Jake visited Daniel and during that visit: (1) Daniel told Jake that Mr Lander had done a 'really thorough job' with his will; -- 10 of 22 -- [2026] WASC 214 WHITBY J Page 11 (2) Daniel started to tell Jake what he had told Mr Lander to put in his will and then said to Jake 'hold on a second bro, I'll open the email he sent and read it to you'; (3) Daniel took out his iPhone and appeared to be reading from it and said words to the effect that if he died and Jake and his brothers outlived him, that he had left everything split evenly between his brothers; (4) Daniel said to Jake 'I'm not leaving anything to Mum and Bob 'coz they have enough'; (5) Daniel said to Jake 'I've got an appointment next week to go and sign it' - 'it' being a reference to the draft will Daniel had received by email from Mr Lander and viewed and read on his iPhone. 32 On 11 February 2023, Bob had the following conversation in his car with Daniel: (1) Bob said 'Did you get your will? Is it what you wanted?'; (2) Daniel said 'It's pretty straightforward. I'm leaving everything to the boys'; (3) Bob said 'When shall we go and get it signed? Want to go next week sometime?'; and (4) Daniel said 'ok'. 33 After Daniel died, Mereana and Daniel's brothers made numerous unsuccessful attempts to access his iPhone by guessing his PIN. 34 While Justin was cleaning out Daniel's house, he found Daniel's laptop and attempted to login to see if there were any photographs or videos stored on the laptop. He was not able to login to the laptop. 35 Mereana gave Justin the laptop for his son to use, however Justin's son was not able to use it because he could not login. 36 A few months later, Justin tried again to access photographs, videos or sound recordings on Daniel's laptop by removing the storage device from Daniel's laptop and putting it into his own computer. Justin was not able to access the storage device from Daniel's computer. -- 11 of 22 -- [2026] WASC 214 WHITBY J Page 12 Justin then purchased an external hard drive case and connected Daniel's laptop to it. However, this did not work either. 37 Justin did not put Daniel's storage device back into Daniel's laptop, he left it in the external hard drive, and Justin has not been able to find the external hard drive or Daniel's storage device. 38 Mereana engaged Mr Michael, a digital forensic expert, to interrogate and analyse Daniel's iPhone, laptop and Hotmail account in an attempt to ascertain whether Daniel received, opened and/or viewed the Will and whether the Will was located on Daniels' iPhone or laptop. 39 Mr Michael was: (1) unable to gain access to Daniel's iPhone as it was locked due to an excessive number of attempts to guess the iPhone's PIN; (2) unable to gain access to Daniel's laptop as the internal storage device was missing; (3) without access to Daniel's iPhone or the internal storage of his laptop, unable to apply any forensic techniques which may have provided the credentials for Daniel's Hotmail account; (4) unable to confirm whether Daniel had received, opened or viewed Mr Lander's 3 February 2023 email or whether the Will was stored on Daniel's iPhone and/or laptop; (5) able to confirm that an email was sent from Mr Lander to Daniel's Hotmail account on 3 February 2023 at 11.21 am and that the email contained four attachments, one of which was entitled '02 Will.pdf'; (6) able to confirm that a copy of Mr Lander's 3 February 2023 email was forensically extracted from Mr Lander's computer and the draft will that was attached to Mr Lander's 3 February 2023 email is the document attached at Annexure 'DAM-2' to the Michael Affidavit; and (7) able to confirm that, upon Daniel opening the pdf of the draft will attached to Mr Lander's 3 February 2023 email from his iPhone, the document would have either been saved to the iPhone in a specific location or the iPhone would have created a copy of the draft will in a temporary storage location to allow the document to be displayed and read. -- 12 of 22 -- [2026] WASC 214 WHITBY J Page 13 Disposition on the evidence Is there a 'document' that purports to embody Daniel's testamentary intentions? 40 There are two parts to this question - the first is whether there is a 'document' and the second is whether that 'document' embodies Daniel's testamentary intentions. 41 Mereana submits that Daniel viewed and read, on his iPhone, the document marked 'draft' that was emailed to him by Mr Landers on 3 February 2023. Mereana says that it is the digital copy of the draft will stored on Daniel's iPhone that is the document that constitutes the Will. 42 Graeme says the evidence relied upon by Mereana does not prove the Will exists. Therefore, there is no 'document' which can be admitted to probate. Mereana submits that the Will is lost because it cannot be accessed or retrieved from Daniel's iPhone or laptop. 43 A digital will stored on an iPhone is clearly 'anything from which sounds, images or writings can be reproduced with or without the aid of anything else' and is therefore capable of being a document for the purposes of s 32(1) of the Wills Act.12 I understand this not to be in issue between the parties. 44 What is in issue is whether Mereana has established to the requisite standard that Daniel received that document, read that document and retained that document on his iPhone. 45 Counsel for Graeme submits the evidence is uncorroborated and is insufficient to discharge Mereana's onus to prove, on the balance of probabilities, that Daniel opened, read and approved of the contents of the Will emailed to him by Mr Landers on 3 February 2023. Counsel submits that the court cannot be satisfied that the Will exists. 46 The effect of s 32(3) of the Wills Act is that evidence of statements made by Daniel as to the existence of and content of his testamentary intentions is admissible. Evidence of other persons' statements and other material circumstantial evidence relevant to Daniel's testamentary intentions is also admissible.13 A lost will, which 12 See also Re Yu [2013] QSC 322. 13 Mitchell v Mitchell [2010] WASC 174 [21] (Mitchell) (Heenan J). -- 13 of 22 -- [2026] WASC 214 WHITBY J Page 14 is not presumed to be revoked, can be proved by parole evidence alone.14 47 The evidence adduced by Mereana was not challenged. I am satisfied the evidence sought to be relied upon by Mereana is admissible and material. 48 I accept the evidence of Mr Lander as to Daniel's testamentary intentions communicated to him. Mr Lander is an independent witness and an officer of the court. I also accept the evidence of Mr Michael. He is an independent qualified expert in the area of digital forensics. 49 As to the evidence of Mereana, Bob and Jake, their unchallenged evidence is consistent. Daniel told each of them he was happy with his will, that he had left everything to his four brothers, and he wanted to sign the will. I accept the evidence of Mereana, Bob and Jake. 50 As to Justin's evidence of his attempts to gain access to Daniel's iPhone and laptop, his evidence is plausible and fulsome. I accept Justin's evidence. 51 I am satisfied that the only reasonable inference is Daniel read and approved of the contents of the Will. That is because: (1) Daniel received Mr Lander's 3 February 2023 email, opened the draft will attached by accessing his Hotmail account and read it. Daniel must have done so in order to tell Mereana, Bob and Jake that he was happy with the Will, he had left everything to his brothers and wanted to sign 'it'. 'It' could only be a reference to the draft will attached to Mr Lander's 3 February 2023 email - Mr Lander had not sent any other draft will to Daniel. Further, it is compelling evidence that Daniel said to Jake, 'hold on a sec bro, I'll open the email he sent and read it to you.' There is no available inference other than Daniel was reading from the draft will attached to Mr Lander's 3 February 2023 email; (2) there is no evidence that Daniel made any changes to the Will. The draft will attached to Mr Lander's 3 February 2023 email was in pdf format, making it difficult to edit. In any event, Daniel told Mereana, Bob and Jake that he was happy with his will and wanted to sign it; and 14 Sugden v Lord St Leonards (1876) LR 1 PD 154. -- 14 of 22 -- [2026] WASC 214 WHITBY J Page 15 (3) the draft will attached to Mr Lander's 3 February 2023 email gave effect to the testamentary wishes Daniel had conveyed to Mr Lander during their meeting on 18 January 2023. 52 I am satisfied there is a document over which probate may be granted, that being the Will, and the Will embodied Daniel's settled testamentary intentions. Did the Will revoke all previous wills? 53 Clause 1.1 of the copy of the Will states 'I revoke all previous testamentary acts.' I am satisfied all previous wills of Daniel were revoked by the Will. Has the presumption that the Will has been destroyed been overcome? 54 If a will has been in the possession of a deceased and cannot be located upon the deceased's death, it is presumed to have been destroyed by the deceased with the intention of revoking the will.15 However, this is a presumption of fact, which, according to the court in Larussa v Carr:16 … may be overcome by facts showing a higher degree of probability that the will was accidentally lost or destroyed rather than having been destroyed with the intention to revoke it or, more generally, could not be produced for some reason other than it was destroyed by the deceased with the intention to revoke it. The strength of the presumption of revocation varies according to the facts. In other words, the circumstances of the case, including the facts concerning the character of the deceased's custody of the will, will influence what facts and evidence are necessary to rebut the presumption. (emphasis added) 55 I am satisfied, on the evidence before the court, that this presumption is overcome. The evidence of Mereana, Bob and Jack establishes that Daniel intended to execute a copy of the Will at a time proximate to his death, but did not do so prior to his death. Daniel died unexpectedly from causes not attributable to his kidney failure before he executed a engrossed copy of the Will. This evidence is inconsistent with Daniel destroying the Will. 15 McCauley v McCauley [1910] HCA 16; (1910) 10 CLR 434. 16 Larussa v Carr [2018] WASCA 127 [115] - [116] (Murphy and Beech JJA, Allanson J), citing McCauley v McCauley. -- 15 of 22 -- [2026] WASC 214 WHITBY J Page 16 56 Further, the evidence of Mr Michael and Justin provides a detailed explanation as to the attempts to produce the Will and cogent reasons why they have been unable to do so. Counsel for Graeme contended that if the Will did exist, it is not 'lost' because it is on Daniel's iPhone. However, I am of the view that the Will is currently lost to Mereana and to the court because it cannot be retrieved from Daniel's iPhone. It cannot be produced for some reason other than it was destroyed by the deceased with the intention to revoke it. The reason that the Will cannot be produced to the court is because it exists in electronic form on Daniel's iPhone and cannot be recovered due to the security constraints of Daniel's iPhone. 57 I find that the presumption that the Will has been destroyed has been overcome. Is there evidence as to the terms of the Will? 58 Mr Michael's evidence establishes that the draft will that Mr Lander emailed to Daniel on 3 February 2023, the will that I am satisfied Daniel read on his iPhone after accessing it from his Hotmail account, is identical to the will annexed at 'DAM2' of the Michael Affidavit. I am satisfied that Daniel did not edit the Will. 59 I find that Annexure 'DAM2' to the Michael Affidavit is in identical terms to the Will and therefore evidences the terms of the Will. 60 In my view, a draft will prepared by a solicitor can be admitted to probate where the deceased approved the draft as constituting his or her will without more, but died prior to executing the engrossed copy. Did Daniel intend the Will to constitute his will? 61 In my view, this is the most difficult hurdle that Mereana must overcome in order to obtain a grant of probate in solemn form of a copy of the Will. 62 It is not sufficient for Mereana to simply prove that the Will embodies Daniel's testamentary intentions (which I am satisfied it does). Mereana must also prove that Daniel intended the Will to be the legally operative document which disposes of his property upon his death. That is, Daniel must have intended the Will to have present operation as his will.17 The court does not grant probate over 17 Oreski [54] (Newnes AJA). -- 16 of 22 -- [2026] WASC 214 WHITBY J Page 17 documents that are only incomplete, tentative or preliminary expressions of a person's testamentary intentions or where the document requires further consideration, drafting or revision.18 63 Daniel told Mereana, Bob and Jake, each on separate occasions between 3 February 2023 and 13 February 2023, that he wanted to sign his will or sign 'it'. I am satisfied that by his 'will' and 'it', Daniel was referring to signing a printout of the Will. 64 Although it may be said that Daniel did not intend the Will to have present operation as his will because he knew he had to do more, that is sign his will, that is not fatal to Mereana's application. I am satisfied, on the evidence, that the Will was not incomplete, tentative or preliminary, but rather the Will was the expression of his settled testamentary intentions, and Daniel did not intend to make any changes to the Will, and intended the Will to have present operation as his will, notwithstanding the fact he intended to execute an engrossed copy of the Will. 65 Similar circumstances to Daniel's have been considered in several cases in this court. 66 In Mitchell, the deceased had been admitted to hospital. During the time he was in hospital he gave instructions to his solicitor to prepare a will. The solicitor prepared a will in accordance with his instructions. The deceased had part of the draft will read to him by his former wife and he read the draft will himself. On the morning of 6 November 2008, the deceased told his former wife that he wanted to execute the will later that morning as it had been drafted. The deceased died shortly thereafter on 6 November 2008 without having executed the will. Heenan J was satisfied that the unexecuted draft will embodied the settled testamentary intentions of the deceased and that a grant of probate in solemn form of that informal will should be made.19 67 In Deeks, the deceased died on 28 May 2008 while in hospital. On 14 or 15 May 2008, the deceased and Mr Deeks located an unexecuted copy of a will drafted in 2007 for the deceased by a solicitor. The deceased read the document and confirmed to Mr Deeks that it set out what he wished to happen with his estate and that he had given instructions to the solicitor to draft this will. The document was 18 James David Deeks as Executor appointed in the Will v Alexander Howard Greenwood by his guardian ad litem Andrew Greenwood [2011] WASC 359 [69] (Heenan J) (Deeks). 19 Mitchell [44]. -- 17 of 22 -- [2026] WASC 214 WHITBY J Page 18 unsigned and in draft form. The deceased confirmed to Mr Deeks that he would be happy to execute his will in the form of the draft, without any changes, if Mr Deeks arranged for the solicitor to come to his home. Mr Deeks made an appointment with the solicitor to come to the deceased's home on 20 May 2008 with the will to have it executed. The solicitor prepared the will and intended to visit the deceased at his home on the evening of 20 May 2008. On 20 May 2008, the deceased fractured his arm and was admitted to hospital. The solicitor made arrangements to visit the deceased in hospital on 26 May 2008 at 6.00 pm. During that day, the deceased's condition worsened. The solicitor attended the hospital that evening with the freshly engrossed will in the same terms (the only differences to the draft will being the date and a correction to one of the clauses which made no material difference to the effect of the will) for execution, but was advised by the deceased's doctor that due to the deceased being on morphine he was not fit to sign the document. The solicitor left without having the deceased execute the will, intending to return later. The deceased died on 28 May 2008 without signing the will. Mr Deeks sought to propound the draft will read and approved by the deceased before he died as an informal will. Heenan J was satisfied that there should a be grant of probate in solemn form of the informal will of the deceased, being the unexecuted draft will the deceased had read and approved. His Honour was satisfied that the document was finally adopted as embodying the deceased's testamentary intentions, at latest by 16 May 2008, when the deceased instructed his solicitor to engross a new will in those terms and bring it to him for execution, an event which never occurred because of the deceased's death.20 68 In Thomson v Thomson,21 the deceased gave instructions to his solicitor in relation to his will on 19 June 2011. On 28 July 2011, the deceased received a letter from his solicitor attaching a draft copy of his will. On 30 July 2011, the deceased read his draft will with his wife present. He agreed with its contents, except that he wanted to be buried rather than cremated. That was the only change he wanted to make to his will. On 29 August 2011, the solicitor emailed the deceased notifying him he could now make an appointment to sign the will. The deceased and his wife were expecting the birth of their first baby and so replied that they would wait until they were home to make an appointment. The deceased died on 4 September 2011, two days after his child was born, without having signed his will. McKechnie J, being 20 Deeks [89]. 21 Thomson v Thomson [2012] WASC 429 (Thomson) (McKechnie J). -- 18 of 22 -- [2026] WASC 214 WHITBY J Page 19 satisfied that the deceased, had he lived, would have executed a will in all material respects identical to the draft will prepared by his solicitor and that it embodied his testamentary intentions, granted probate in solemn form of the informal will.22 His Honour did not consider that the alteration to the will that the deceased wanted to make (burial rather than cremation) materially affected the substance of the will as it was an advisory direction only.23 69 In Re Young,24 the deceased instructed his lawyer to prepare a will. On 13 May 2014, the lawyer sent the deceased a copy of a draft will and emailed a copy of the will to the deceased's accountant. Sometime between 13 and 19 May 2014, the deceased called his accountant and said to him words to the effect 'I have read the documents (sic) and I am happy with it as long as you are'. The accountant said in response words to the effect that he had read the will and there were no problems with it. The accountant arranged to meet the deceased on 20 May 2014. The deceased took ill on 20 May 2014 and so the meeting was postponed. On 21 May 2014, the deceased told his neighbours that he was going to sign the will the next day when he was attending a doctor's appointment in Perth. The deceased said to his neighbours 'I will get it finished'. The deceased died on 22 May 2014 before he executed his will. Tottle J held that the executors named in the informal will were entitled to a grant of probate of that will in solemn form in circumstances where the deceased was unequivocal about his intention to sign the will and the contents of the informal will reflected the deceased's settled testamentary intentions.25 70 In each of these cases, the fact that a will was prepared by a solicitor in terms that clearly contemplated the will would be executed in accordance with the requirements of the Wills Act did not mean that the document was not an informal will, provided that the document embodied the settled and final testamentary intentions of the testator. The execution of the will was not considered to be 'more' (by reference to the judgment of Newnes AJA in Oreski v Ikac) required to be done by the deceased for the document to operate as his will. In relation to this point, Heenan J in Mitchell said:26 Some difficulty may be experienced with the phrase, utilised in Oreski v Ikac … 'that the document [in question] should, without more on his 22 Thomson [12]. 23 Thomson [12] referring to Williams v Williams (1882) 20 ChD 659. 24 Re Estate of Young, Ex Parte Young [2015] WASC 409 (Re Young) (Tottle J). 25 Re Young [49]. 26 Mitchell [42] - [43]. -- 19 of 22 -- [2026] WASC 214 WHITBY J Page 20 or her part, operate as his or her will', because in a case such as the present the inference must surely be that, had he not collapsed in the bathroom and died soon after, Mr Mitchell would have executed the will so that his intention at the time may be regarded as including an intention to have the document formally executed as a valid will as required by s 8 of the Wills Act so that, upon such execution, it would take effect at law. It is, therefore, possible to say in the strict sense that the deceased's intention was that the draft will would operate as his will once it was executed. However, I do not consider that this detracts from the effectiveness of the document as an informal will because s 32 itself does not use that phrase. Clearly, Newnes JA in that case was using that language to emphasise the need for the document being propounded for proof as an informal will to express the concluded testamentary intentions and the decision of the deceased rather than being some provisional, preliminary or tentative proposal which had not by then received the deceased's full assent. … This case highlights the position that the breadth of the section and the Parliamentary intention are that a document which embodies the testator's settled testamentary intention is entitled to be admitted to proof notwithstanding that it has not been executed. 71 Further, it is evident from these cases that the fact the deceased intended to execute a hardcopy of the document which was not the copy sent to the deceased by his solicitor did not mean the deceased did not intend the document sent to him to be his will. The will that each deceased in these cases intended to sign was in the same terms as the draft will they had read and approved, and embodied their testamentary intentions. 72 Finally, the fact that an informal will is not dated is not, of itself, an obstacle to obtaining a grant of probate. In the absence of a contrary intention expressed by the deceased, a will takes effect as if it had been executed immediately before the death of the testator.27 73 I am satisfied that by 13 February 2023, Daniel intended that the Will operate as his will. He may also have intended to execute an engrossed copy, but this does not preclude a finding that he intended the Will to operate as his will. He had sufficiently demonstrated that it was his then intention that the subject document should, without more on his part, operate as his will. Had he not died unexpectedly and suddenly, and had he executed an engrossed copy of the Will, then that document would have become his will in place of the Will. 27 Wills Act s 26(1)(a). -- 20 of 22 -- [2026] WASC 214 WHITBY J Page 21 74 My reasons for so finding are as follows: (1) Daniel had settled upon his testamentary intentions on 18 January 2023 when he met with Mr Lander and gave him clear instructions as to his testamentary wishes. Those instructions were reflected in the draft will prepared by Mr Lander and sent by email to Daniel on 3 February 2023. (2) Between 3 February 2023 and 13 February 2023, Daniel told Mereana, Bob and Jake he was happy with the Will, he had left everything to his four brothers and he wanted to execute the Will. Daniel was unequivocal that he approved of the Will and about his settled intention to sign it. (3) I am satisfied that the contents of the Will embody the deceased's settled and final testamentary intentions and that he intended that document to operate as his will. But for his unexpected and sudden death, I am satisfied that Daniel would have executed an engrossed copy of the Will. (4) The fact that cl 6 of the Will requested Daniel's instructions as to whether he wished to be buried or cremated does not preclude a grant of probate in solemn form over the Will as this was an advisory direction only and not a testamentary matter. Other matters 75 The evidence relied upon by Mereana establishes that Daniel was over the age of 18 years, left property within the jurisdiction and had not married or divorced since he had expressed his testamentary intentions. 76 I am also satisfied, based upon the evidence of Mr Lander that Daniel had testamentary capacity at the time that he settled upon his testamentary intentions reflected in the Will. There is no evidence to suggest that Daniel did not continue to have testamentary capacity up until the day that he died. Final orders 77 Where an original will is lost and an application is made for an order admitting a copy of that lost will, the grant made should be limited until the original is proved.28 This conventional practice 28 Powell v Dinwoodie [40]. -- 21 of 22 -- [2026] WASC 214 WHITBY J Page 22 envisages that there will be occasions where a will may be lost in the sense that it is not able to be produced to the court, but may later be found. That is the case here. I am satisfied that despite every possible effort being made to locate the Will, it is not able to be retrieved from Daniel's iPhone. I am satisfied that the Will is lost to the parties and to the court. 78 I find that Daniel made his last will and testament, that being the (lost, informal) Will, between 3 February 2023 and 13 February 2023, and that the Will is unrevoked. There should be a grant in solemn form of that will in the form of the copy annexed to the Michael Affidavit attachment DAM-2. The grant should be limited until the original of the will is proved. The actual terms of the grant should be settled by a registrar of the court and there will be liberty to apply in relation to any matter concerning the terms of the grant. 79 As to costs, my preliminary view is that the costs of all parties should be paid by the estate. Notwithstanding that Graeme has been unsuccessful in opposing the grant of probate in solemn form, these proceedings arise from, and were necessary because of, Daniel's failure, through no fault of his own, to execute his will. I will, however, give the opportunity for the parties to be heard in relation to final orders and costs in the event they cannot agree final orders. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. SF Associate to the Hon Justice Whitby 2 JUNE 2026 -- 22 of 22 --