SKENDER -v- SKENDER [2026] WASC 196

[2026] WASC 196 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL CITATION : SKENDER -v- SKENDER [2026] WASC 196 CORAM : STRK J HEARD : 4 MARCH 2026 & 14 MAY 2026 DELIVERED : 14 MAY 2026 PUBLISHED : 20 MAY 2026 FILE NO/S : CIV 1040 of 2025 BETWEEN : BENN ADAM SKENDER Plaintiff AND MICHAEL LAURENCE SKENDER Defendant Catchwords: Probate proceeding - Wills - Deceased estate - Proof of will in solemn form - Compromise reached and action set down for trial - Where leave had been granted to the defendant to withdraw his defence and counterclaim - Action entered for trial on an unopposed basis - Turns on own facts Legislation: Administration Act 1903 (WA) Rules of the Supreme Court 1971 (WA) O 73 Wills Act 1970 (WA) -- 1 of 41 -- [2026] WASC 196 Page 2 Result: Grant to be made in solemn form of a will dated 21 December 2020 in favour of the plaintiff Category: B Representation: Counsel: Plaintiff : MW Edinger Defendant : HH Tran Solicitors: Plaintiff : Hall & Wilcox (Perth) Defendant : Legal Care Australia Case(s) referred to in decision(s): Allen v Quinn [2025] WASC 2 Banks v Goodfellow (1870) LR 5 QB 549 Britt v Office of the State Coroner [2022] WASCA 75 Brown v Willoughby [2012] WASC 20 Burgess v Davey [2025] WASC 343 Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786 Fairburn v Healey [2009] WASC 114 Fisher v Kay [2010] WASCA 160 Gangemi v Monaco [2020] WASC 183 Hart v Hart [2010] WASC 329 Hoare v Reyburn (in his capacity as the Executor named in the Purported Will) [2010] WASC 301 Hughes v Grierson [2026] WASC 56 In Re Levy (Deceased) (No 2) [1957] VR 662 In The Estate Of The Late Leo Rene Raig [2006] ACTSC 96 In the Will of Pearce (dec'd) (1945) 46 SR (NSW) 71 In the Will of Wilson (1897) 23 VLR 197 Joseph Mark Zuvela as Executor of the Estate of Marija Zuvela Grizun v Joseph Mark Zuvela Beneficiary of the Estate Marija Zuvela Grizun [2015] WASC 410 -- 2 of 41 -- [2026] WASC 196 Page 3 Khan v Khan [2025] WASC 396 McKinnon v Voigt [1998] 3 VR 543 Osborne v Smith (1960) 105 CLR 153 Pettit v Waters-Pettit [2026] WASC 25 Pringle v Pringle [2010] WASC 206 Re Gramp, Deceased; Finck v Gramp [1952] SASR 12 Re Grey Smith [1978] VR 596 Re Kuhl; Kuhl v Liebcheschel [1933] SASR 394 Scaffidi v Scaffidi [No 2] [2022] WASC 227 Scattini v Matters [2004] QSC 459 Smart v Power [2019] WASCA 106 Timbury v Coffee (1941) 66 CLR 277 Tobin v Ezekiel (2012) 83 NSWLR 757 Veall v Veall [2015] VSCA 60 Wheatley v Edgar [2003] WASC 118 Wytcherley v Andrews (1871) LR 2 PD 327 -- 3 of 41 -- [2026] WASC 196 Page 4 Table of Contents Overview .................................................................................................................................... 5 Applicable principles .................................................................................................................. 7 Displacement of the presumptions ....................................................................................... 11 Propounding an earlier will .................................................................................................. 12 Evidence ................................................................................................................................... 15 Affidavits of scripts .............................................................................................................. 15 What each of the testamentary documents recorded ............................................................ 16 Affidavits of plight and condition ........................................................................................ 20 Further affidavits .................................................................................................................. 22 Disposition ................................................................................................................................ 27 Were all necessary persons named as defendants or given notice of the proceeding? ......... 27 21 December 2020 Will ........................................................................................................ 32 Later testamentary instruments............................................................................................. 36 Conclusion and costs ................................................................................................................ 38 Sch A - Orders made on 14 May 2026 ..................................................................................... 40 -- 4 of 41 -- [2026] WASC 196 STRK J Page 5 STRK J: Overview 1 This action concerned the estate of the late Teresa Lucy Skender who died on 27 June 2024. The deceased was survived by, among others, her grandson Benn Adam Skender (the plaintiff in this action), and her son Michael Laurence Skender (the defendant). 2 On 17 July 2024 the plaintiff lodged a caveat in the probate jurisdiction of the Court.1 3 On 12 August 2024 the defendant lodged an application in the Court's non-contentious probate jurisdiction. In a proceeding known as PRO 5591 of 2024, the defendant sought to be granted administration of the estate of the deceased on the basis that the deceased had died intestate and that, as the deceased's surviving son, he was the only person entitled in distribution. Following lodgement, the defendant was informed that his application could not proceed while the caveat remained on foot. 4 On 16 January 2025 the plaintiff commenced a contentious probate proceeding by filing a writ of summons. Only Michael Laurence Skender was named as a defendant to the action. The writ was endorsed with a statement of claim which recorded that relief was sought by the plaintiff in the following terms: 1. An order that the Court pronounce against the force and validity of the 20 January 2022 Will. 2. An order that the Court pronounce against the force and validity of the Codicil. 3. An order that the Court pronounce against the force and validity of the 20 September 2022 Will. 4. An order that the Court pronounce for the force and validity of the 21 December 2020 Will. 5. That there be a grant in favour of the Plaintiff of letters of administration with the will annexed in solemn form of the 21 December 2020 Will. 6. An order removing probate caveat CAV/125/2024. 7. The costs of the action be paid by the Defendant. 1 Allocated number CAV 125 of 2024. -- 5 of 41 -- [2026] WASC 196 STRK J Page 6 8. In the event there is a shortfall between the costs paid by the Defendant pursuant to order 7 above, and the costs actually incurred by the Plaintiff on a full indemnity basis, the shortfall be paid from the Estate on a full indemnity basis. 9. In the alternative to orders 7 and 8 above, the costs of the action be paid from the Estate on a full indemnity basis. 10. Such further or other relief or orders as the Court deems fit. 5 As is recorded above, the plaintiff sought, among other things, an order that the Court pronounce for the force and validity of a will executed by the deceased on 21 December 2020 (described in these reasons as the 21 December 2020 Will). 6 While the action was initially defended, by orders made by the consent of the parties on 26 November 2025: (a) the defendant was granted leave to withdraw the defence and counterclaim filed on 27 March 2025, and upon the making of such order, the defence and counterclaim was withdrawn;2 and (b) leave was granted for the action to be set down for a trial on an unopposed basis pursuant to O 73 r 19 of the Rules of the Supreme Court 1971 (WA) as a short cause matter with evidence by affidavit.3 7 The trial was listed on 4 March 2026. While it proceeded on an undefended basis, the defendant continued to be represented by counsel. The plaintiff read various affidavits which are outlined later in these reasons. The Court also received in advance of the trial the plaintiff's outline of submissions.4 8 On 4 March 2026 the trial was adjourned part heard so that Candi Papadopoulos (formerly known as Candi Skender, one of the deceased's grandchildren) could be given notice of the proceeding and, should she wish to intervene, afforded the opportunity to file a notice of appearance; and so that the original 21 December 2020 Will could be located. 9 After Candi Papadopoulos was given formal notice of the proceeding by service, she did not file an appearance and did not seek 2 Order 1 of the orders made on 26 November 2025. 3 Order 2 of the orders made on 26 November 2025. 4 Plaintiff's outline of submissions filed on 12 February 2026. -- 6 of 41 -- [2026] WASC 196 STRK J Page 7 to be heard. The original 21 December 2020 Will was delivered to the Court on 13 March 2026.5 10 On 14 May 2026 the trial resumed. The plaintiff read further affidavits which are also outlined later in these reasons, and relied upon a supplementary outline of submissions.6 11 For the reasons that follow, an order was made at the conclusion of the trial pronouncing the force and validity of the 21 December 2020 Will and directing that a Registrar issue letters of administration with the 21 December 2020 Will annexed in solemn form in favour of the plaintiff, a named beneficiary. A copy of the orders made are reproduced at sch A to these reasons. 12 In these reasons reference is made to various members of the Skender family, in addition to the deceased and the parties to the proceeding. As some share the same surname I refer to them by their given names so as to avoid confusion. No disrespect is intended. Applicable principles 13 In Allen v Quinn [2025] WASC 2, Lemonis J summarised the legal principles relevant to an application for a grant of probate in solemn form. In the disposition of this matter, I adopted and applied the principles there outlined, and reproduce with gratitude that summary here.7 14 The probate of a will may be granted in common form or in solemn form. There is a significant difference between the two. A grant of probate in common form is revocable. On the other hand, the circumstances in which a grant in solemn form may be revoked are limited.8 15 The proof required to obtain a grant in solemn form differs to that required for a grant in common form. That difference still applies where a compromise has been reached. In this respect, EM Heenan J stated in Wheatley v Edgar:9 … 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 5 Affidavit of TE Creek sworn on 26 March 2026 par 7. 6 Plaintiff's supplementary outline of submissions filed on 13 May 2026. 7 Allen v Quinn [15] - [25]. 8 Wheatley v Edgar [2003] WASC 118 [18]. 9 Wheatley v Edgar [26] - [27]. -- 7 of 41 -- [2026] WASC 196 STRK J Page 8 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. It is in this context that the provisions of RSC 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. 16 In Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786, Lindsay J made the following observations:10 … if all interested parties appear before the Court or are demonstrated to have been given sufficient notice of the proceedings to be bound by any determination of the Court, the Court may have greater latitude than otherwise would be the case on an assessment of the evidence upon which a determination about a testator's testamentary intentions, if any, is to be made. … In the interests of the due administration of justice the Court may acquiesce in a procedural process in which selective notice is taken of some, and not other, evidence in order to accommodate an application for a solemn form grant in which all adversarial interests acquiesce. It is because of this possibility that the essential character of a solemn form grant cannot, for all purposes, be defined by reference to an evidentiary standard alone. The Court reserves a right to act expediently in the interests of the administration of justice: eg, Palin v Ponting [1930] P 185 at 188, applying Gornall v Mason (1887) 12 PD 142. It does not, and it is not required to, apply in every case a rigorous requirement, for a grant in solemn form, that it have no notice, in fact, of evidence casting doubt 10 Estate Kouvakas; Lucas v Konakas [251], [262] - [263]. -- 8 of 41 -- [2026] WASC 196 STRK J Page 9 on the validity of an instrument propounded as the deceased's last will. Where it is proper and reasonable to do so, it can, in the interests of justice and the due administration of an estate, proceed on the basis of a formal notation of evidence tending to prove the validity of an instrument, allowing parties to discount other lines of inquiry. 17 In order to establish that proof of the will should be pronounced in solemn form, it is necessary for the propounding party to establish due execution of the will. It is also necessary to establish that the deceased had testamentary capacity to make the will at the time of execution, knew and approved of the contents of the will, and intended that the document they executed was to be their will.11 These requirements were often described by the summary terms of due execution, testamentary capacity, knowledge and approval, and testamentary intention. 18 Relevantly, due execution is established if the will is signed by the deceased in the presence of two witnesses present at the same time, who then sign the will attesting that the deceased signed it in their presence. This attestation of the witnesses must occur in the deceased's presence.12 19 As to testamentary capacity, it is sufficient for the purposes of this case to observe as follows:13 Before a will can be upheld it must be shown that at the time of making it the testator had sufficient mental capacity to comprehend the nature of what he was doing, and its effects; that he was able to realise the extent in character of the property he was dealing with, and to weigh the claims which naturally ought to press upon him. In order that a man should rightly understand these various matters it is essential that his mind should be free to act in a natural, regular, and ordinary manner. 20 In making this assessment, regard is had to the dispositions made by the will and the extent to which the will provides for those persons who were the objects of the deceased's affection during their life. 21 In respect of the question of age, in Scattini v Matters [2004] QSC 459, Muir J said: Great age is a factor which will normally suggest the exercise of particular vigilance when considering testamentary incapacity (Bailey v Bailey [1924] HCA 21; (1924) 34 CLR 558.) It does not follow, 11 Fisher v Kay [2010] WASCA 160 [82]. 12 Wills Act 1970 (WA) s 8. 13 In the Will of Wilson (1897) 23 VLR 197, 199 (Hood J). See also Timbury v Coffee (1941) 66 CLR 277, 283 (Dixon J); See further Banks v Goodfellow (1870) LR 5 QB 549, 565; Pettit v Waters-Pettit [2026] WASC 25 [55]. -- 9 of 41 -- [2026] WASC 196 STRK J Page 10 however, that even a marked decline in a testator's intellectual capacity through advancing age establishes lack of testamentary capacity. 22 Knowledge and approval of the contents of a will is the traditional language used to convey that the will represents the testamentary intentions of the deceased. Testamentary capacity, and knowledge and approval, are distinct concepts. Testamentary capacity is a necessary, but not sufficient, condition for the establishment of knowledge and approval.14 23 Testamentary intention is that the deceased intended the document they executed was to be their will. As was observed by Lemonis J, it would be a rather unusual circumstance where testamentary capacity and knowledge and approval were established, but testamentary intention was not. However, the circumstances as a whole would still need to be looked at in assessing whether testamentary intention was established.15 24 There are a number of presumptions that can ordinarily be availed of in cases seeking to prove a will. A presumption of due execution arises where a will regular on its face bears the signatures of a testator and two witnesses.16 Where a will has been duly executed, three presumptions then arise: testamentary intention, testamentary capacity and knowledge, and approval of the contents of the will.17 These presumptions may however be displaced. 25 Of course, even where a will is not duly executed but the Court is satisfied that intention was present on the part of the deceased for the document to constitute their will, the Court maintains discretion to dispense with formal requirements and find a document purporting to embody the testamentary intention of a deceased person is a will.18 In forming its view, the 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 of statements made by the person.19 14 Veall v Veall [2015] VSCA 60 [173] (Santamaria JA, with whom Beach & Kyrou JJA agreed); see further Pettit v Waters-Pettit [57]; Smart v Power [2019] WASCA 106 [135]. 15 Allen v Quinn [24]. 16 Fisher v Kay [83]. 17 Fisher v Kay [85]; Khan v Khan [2025] WASC 396 [26]; Allen v Quinn [24] - [25]. 18 Wills Act s 32(2)(a). 19 Wills Act s 32(3). -- 10 of 41 -- [2026] WASC 196 STRK J Page 11 Displacement of the presumptions 26 In this case the plaintiff pressed for the Court to pronounce for the force and validity of the 21 December 2020 Will. As to the later wills, it was the plaintiff's position that there was doubt as to whether they expressed the mind of the deceased, and to the extent that any presumptions arose, they had been displaced in the circumstances. 27 Where a will has been duly executed, the presumption of knowledge and approval of the contents of a will by the deceased may be displaced where suspicion attaches to the will in question.20 This presumption may be displaced by circumstances which raise a well-founded suspicion or doubt concerning whether the will expresses the mind of the deceased. Such circumstances can only raise a suspicion of want of knowledge and approval (and therefore be sufficient to displace the presumption) if they are 'circumstances attending, or at least relevant to, the preparation and execution of the will itself'.21 28 In Brown v Willoughby, EM Heenan J noted that a classic instance of suspicious circumstances is where the will was prepared by a person who takes a substantial benefit under it.22 29 Examples of circumstances which may create a well-founded suspicion or doubt as to whether a will expresses the true intention of the testator were also recorded by Hall J in Scaffidi v Scaffidi [No 2] [2022] WASC 227, and included:23 a radical change in long adhered-to testamentary dispositions of the testator, the complexity of the will or the estate being disposed of, the mental acuity or sophistication of the testator (or lack thereof), the exclusion of persons naturally having a claim on the testator, and whether there has been an opportunity for reflection and independent advice regarding the terms of the will. 30 What will constitute sufficient evidence to mitigate the Court's suspicion will depend on the individual circumstances of the matter. Evidence that instructions were given by the deceased for the will, or that the will was reviewed by the deceased may satisfy knowledge and 20 Pettit v Waters-Pettit [58]. 21 Brown v Willoughby [2012] WASC 20 [91], accepting as a correct statement of law a passage from Theobald on Wills (16th ed, 2001). 22 Brown v Willoughby [91]. 23 Scaffidi v Scaffidi [No 2] [96], cited in Pettit v Waters-Pettit [61]. -- 11 of 41 -- [2026] WASC 196 STRK J Page 12 approval, although the weight given to such factors is determined in light of all the circumstances of the case.24 Propounding an earlier will 31 As is noted above, in this case the plaintiff pressed for the Court to pronounce for the force and validity of the 21 December 2020 Will, passing over later wills. 32 I proceeded on the basis that when an application for a grant of probate in solemn form is pressed, the Court is under no duty, statutory or otherwise, to satisfy itself, by any form of independent investigation, of the validity of the will of which probate is sought.25 33 Hoare v Reyburn (in his capacity as the Executor named in the Purported Will) [2010] WASC 301 considered the application for a grant of probate in solemn form where the deceased left two wills, and the first was sought to be proved. The plaintiff had sought to rely upon the presumption which arose from due execution of the first will that a testament properly executed is, in the absence of evidence to the contrary, presumed to have been made by a person competent and understanding to establish proof that the first will was the last valid and effective testament of the deceased. 34 On the evidence, EM Heenan J was satisfied that the first will was duly executed and as to the second will, recorded as follows:26 The plaintiff has, from the outset, disclosed to the court and the potential beneficiaries the existence of the later will of 2005 and that testament has been produced to the court. Notice of proceedings have been given to the executor and to the pecuniary residuary beneficiary named under that will but, as already described, neither has attempted to defend the proceedings or to propound that will. This is sufficient of itself to allow the court to make a grant of probate of the [first] will in accordance with the principles which I have just set out. 35 Two years later in Brown v Willoughby, when asked to make a grant of probate in solemn form of an earlier will, consistent with the above, EM Heenan J recorded at [92]: In this present case, as already observed, no person is seeking to prove either of the 2001 wills or is claiming any benefit under either of them. 24 Smart v Power [135], citing Tobin v Ezekiel (2012) 83 NSWLR 757 [47]; McKinnon v Voigt [1998] 3 VR 543, 555; Veall v Veall [173]. 25 In Re Levy (Deceased) (No 2) [1957] VR 662, 665. 26 Hoare v Reyburn (in his capacity as the Executor named in the Purported Will) [11]. -- 12 of 41 -- [2026] WASC 196 STRK J Page 13 That of itself would provide grounds to allow probate to be granted of the 1999 will: Re Grey Smith [1978] VR 596 and In the Estate of the late Leo Rene Raig [2006] ACTSC 96; Thornhill v Thomas [2010] WASC 297; Hoare v Reyburn [2010] WASC 301 [11]; The Estate of Kirs (deceased) (1990) 55 SASR 61; and Wheatley v Edgar [2003] WASC 118; (2003) 4 ASTLR 1. 36 As was noted by EM Heenan J in Hoare v Reyburn (in his capacity as the Executor named in the Purported Will) at [8]: This recognises the established principle that there is no onus on an executor seeking to propound the earlier of two testamentary instruments to prove a lack of testamentary capacity at the time of the later testamentary instrument or prove its invalidity: In The Estate Of The Late Leo Rene Raig [2006] ACTSC 96 and Re Grey Smith (1978) VR 596. 37 His Honour further observed that in In The Estate Of The Late Leo Rene Raig [2006] ACTSC 96, Master Harper referred to the decision in Re Grey Smith [1978] VR 596 at [34]:27 Re Grey Smith [1978] VR 596, a decision of Murphy J of the Supreme Court of Victoria, is authority for the proposition that the onus of proving the validity of a later will in the circumstances of this case rests on those seeking to propound it. Where an executor can establish circumstances which give rise to a well-founded suspicion that the second document does not represent the true will of a capable testator then, provided that notice has been given to all interested parties and none have come forward to propound the later document and the will is proved in solemn form, the court should ignore the later document. 38 In Brown v Willoughby, while EM Heenan J had reached the conclusion reproduced at [34] of these reasons, his Honour recorded that he had also been satisfied that there were circumstances of suspicion which refuted the presumptions of testamentary capacity, knowledge and understanding by the testatrix and lack of undue influence which would otherwise arise from the fact that each of the later wills appeared to have been duly executed by the testatrix in the presence of the two subscribing witnesses.28 In those circumstances, his Honour concluded that there was every reason for the plaintiff in that case to decline to seek proof of either of the later wills.29 39 In the recent decision of Hughes v Grierson [2026] WASC 56 at [57], Bydder J approached an application for a grant in solemn form 27 Hoare v Reyburn (in his capacity as the Executor named in the Purported Will) [8]. 28 Brown v Willoughby [93]. 29 Brown v Willoughby [94]. -- 13 of 41 -- [2026] WASC 196 STRK J Page 14 with respect to an earlier will in a manner consistent with the above. When regard was had to the evidence, Bydder J found that there was a well-grounded suspicion that the later will did not express the mind of the deceased, and concluded that it was neither necessary nor appropriate for his Honour to do more than so find.30 Citing Master Harper in In The Estate Of The Late Leo Rene Raig at [34] and EM Heenan J in Brown v Willoughby at [92] to [96], Bydder J recorded at [61]: Notice has been given to all parties interested in the [later] Will. The plaintiff no longer wishes to propound the [later] Will and no one else has come forward to do so. In those circumstances and in light of the well-founded suspicion that I have found to exist, I should ignore the [later] Will. 40 I had regard to these principles in the disposition of this application. 41 In so doing I noted that even though settlement may be reached between parties, there may be circumstances that warrant the leading of medical expert evidence addressing the deceased's mental capacity and vulnerability to influence at the time of providing instructions and signing a later will, and the making of positive findings as to the invalidity of that later will. This occurred in Pettit v Water-Pettit where by the consent of the parties leave was granted to adduce such expert evidence in the context of a compromised proceeding.31 42 However, I did not understand Pettit v Waters-Pettit to be authority for the proposition that there was an onus on the parties seeking to propound an earlier will to prove a lack of testamentary capacity at the time of the later instrument or prove its invalidity. Rather, his Honour dealt with the matter on the evidence read, having regard to the directions made by the Court by the consent of the parties and the manner in which the defendant prosecuted her claim.32 43 In light of the authorities summarised above, I proceeded on the basis that where a well-founded suspicion has been established that may be sufficient to ignore a later will.33 30 Hughes v Grierson [60]. 31 Pettit v Waters-Pettit [28]. 32 Pettit v Waters-Pettit [30], [43] - [48]. 33 See Re Grey Smith (603 - 604), and in particular the discussion of the approach taken in In the Will of Pearce (dec'd) (1945) 46 SR (NSW) 71, 72 - 73. -- 14 of 41 -- [2026] WASC 196 STRK J Page 15 Evidence 44 At the trial of the action, counsel for the plaintiff read ten affidavits, two being affidavits of scripts and two which concerned plight and condition. The following is not intended to be a comprehensive recitation of each affidavit. Affidavits of scripts 45 Order 73 r 11 of the Rules of the Supreme Court requires the filing of an affidavit of scripts by the plaintiff and any defendant who has entered an appearance. In this action, two affidavits of scripts were filed and both were read at trial. Affidavit of scripts of Michael Laurence Skender 46 The first of the two affidavits of scripts was sworn by the defendant on 16 May 2025. Among other things, the defendant deposed that he was not aware of any other testamentary disposition or instruments produced by the deceased apart from the following: (a) a document titled 'LAST WILL AND TESTAMENT OF TERESA LUCY SKENDER' dated 21 December 2020 (that is, the 21 December 2020 Will); (b) a document titled 'LAST WILL AND TESTAMENT' dated 20 January 2022 (described in these reasons as the 20 January 2022 Will); (c) a document which purports to be a codicil to a will dated 20 January 2022 dated 16 March 2020 (described in these reasons as the Codicil); and (d) a document titled 'LAST WILL AND TESTAMENT' dated 20 September 2022 (described in these reasons as the 20 September 2022 Will and Codicil). 47 Attached to the defendant's affidavit of scripts and marked 'Annexure A' was a copy of the documents referred to above. 48 As was observed in the course of the trial, the copy of the 21 December 2020 Will attached to the defendant's affidavit of scripts appeared incomplete as it did not attach a copy of survey plan 81968, -- 15 of 41 -- [2026] WASC 196 STRK J Page 16 which attachment was referenced at cl 4.5 of the 21 December 2020 Will.34 Affidavit of scripts of Benn Adam Skender 49 The second of the two affidavits of scripts was sworn by the plaintiff on 23 May 2025. Among other things, the plaintiff deposed that he was not aware of any purported testamentary scripts made by the deceased other than the 21 December 2020 Will; the 20 January 2022 Will; the Codicil; and the 20 September 2022 Will and Codicil. A copy of each of the documents were attached to his affidavit and marked 'BS-1' to 'BS-4', respectively. 50 As to the location of the original documents, the plaintiff deposed that the original 21 December 2020 Will was in the possession of Kaine Michael Skender (the defendant's son) at the time of swearing his affidavit. As to the remaining documents, the plaintiff deposed that the original documents were in the possession of the defendant. 51 Again, the copy of the 21 December 2020 Will attached to the plaintiff's affidavit of scripts appeared incomplete as it did not attach a copy of survey plan 81968, which attachment was referenced at cl 4.5 of the 21 December 2020 Will. What each of the testamentary documents recorded 52 It was convenient here to provide an overview of what each of the documents described in and attached to the affidavits of scripts recorded. 21 December 2020 Will 53 The 21 December 2020 Will was the first of four documents which purport to record the testamentary intentions of the deceased, and was the will in relation to which the plaintiff sought an order pronouncing force and validity. 54 Among other things, the 21 December 2020 Will recorded that: (a) it had been prepared by Charthill Legal; (b) the deceased revoked all prior wills and testamentary acts (cl 2); 34 ts 33 - 34 (14 May 2026). -- 16 of 41 -- [2026] WASC 196 STRK J Page 17 (c) for the purposes of the deceased's will, Phillip John Skender and the defendant were defined as 'My Children', and Kristan Joel Skender, Kaine and the plaintiff as 'My Grandchildren' (cl 1.1 and cl 1.2); (d) the deceased appointed Phillip as executor and trustee, and should Philip predecease her or be unwilling or unable to act, the deceased appointed her late husband's brother Edward (referred to in the document as Eddie) Skender in Phillip's place (cl 3.1); (e) the deceased gave the entire residue of her estate to 'My Children and Grandchildren' in the following distributions (cl 4.1): 4.1 … a) To Phillip 20% share; b) To Michael 20% share; c) To Kristan 20% share; d) To Kaine 20% share; and e) To Benn 20% share (f) if any of 'My Children' (that is, Phillip or the defendant) or 'My Grandchildren' (that is, Kristan, Kaine or the plaintiff) predeceased the deceased, the share of such predeceased child or grandchild was to be given to the deceased's other children and grandchildren in equal shares (cl 4.2); (g) the deceased's son Raymond Gary Skender was to receive no benefit under the will as the deceased had provided for him adequately during his lifetime (cl 4.3); (h) it was the deceased's wish and desire that the property in which she resided be subdivided (after the demise of her spouse) and the decision to subdivide be made with the deceased's beneficiaries and executor, but in the event of a dispute arising, the final decision whether or not to subdivide the property would be in the sole discretion of the executor (cl 4.4); and -- 17 of 41 -- [2026] WASC 196 STRK J Page 18 (i) the deceased had already donated Lot 2 to her son Phillip who had paid for an erected building on it, as shown on attached survey plan 81968 (cl 4.5). 55 The will appeared to have been executed on each page by the deceased and in the presence of two witnesses (Eda Albert and Julius Lewin) and was dated 21 December 2020. 56 The original 21 December 2020 Will was delivered to the Court,35 to which was attached a copy of survey plan 81968. Each page of the attached survey plan appeared to have been signed by the deceased and the two witnesses. 20 January 2022 Will 57 The 20 January 2022 Will was a two page proforma 'Last Will and Testament' document, which was completed by hand. Among other things, the 20 January 2022 Will recorded that: (a) the deceased revoked all prior wills and other testamentary dispositions; (b) the deceased appointed Marlene Teresa Pavlovich as executor and trustee, and in the event that she predeceased the deceased or was unwilling or incapable of acting, then the deceased appointed Sina Scarisini; (c) gifts of money were to be made to the plaintiff, Kristan, Kaine and Phillip, but the monetary amounts were not specified; and (d) under the heading 'residuary estate' the following was recorded: I give the residue of my estate to such of the following beneficiary or beneficiaries as survive me and if more than one then in equal shares: Michael Laurence Skender, Phillip John Skender has already received his inheritance being the land of 36 Evendale road Darch. On which he has built a home. Therefore I will gift him money. My son Raymond Gary Skender has Declined all offers for any Inheritance or gifts. If all of the above beneficiaries and their incidental beneficiaries predecease me, I give the residue of my estate to such of the 35 Affidavit of TE Creek sworn on 26 March 2026 par 7. -- 18 of 41 -- [2026] WASC 196 STRK J Page 19 following beneficiary or beneficiaries as survive me and if more than one then in equal shares: N/A 58 The deceased signed the document on 20 January 2022 in the presence of two witnesses (Eva Liu and Persa Negrieska). Codicil 59 The Codicil was a one page document in the following terms: Tereza Luci Skender of 34 Evandale road Darch, declare that this is the Codicil to my Last Will and Testament, 20th January 2022. Any debts incurred to my late husband Jack and myself by my son (Michael Laurance Skender) have been paid in full. 60 The Codicil was signed by the deceased before one witness (Sally Allen) and dated 16 March 2020. 20 September 2022 Will and Codicil 61 The 20 September 2022 Will was a two page proforma 'Last Will and Testament' document that was completed by hand. Among other things, the 20 September 2022 Will recorded that: (a) the deceased revoked all prior wills and other testamentary dispositions; (b) the deceased appointed Ms Pavlovich and Stephen Michael Meyers as the executors and trustees of her estate; (c) the deceased made gifts of monetary amounts or items which again were unspecified: -- 19 of 41 -- [2026] WASC 196 STRK J Page 20 (d) under the heading 'residuary estate' the following was recorded: 62 The deceased signed the document on 20 September 2022 in the presence of two witnesses (Qin Chen and Paula Clarke). Affidavits of plight and condition Affidavit of plight and condition of Kaine Michael Skender 63 Kaine is the biological son of the defendant and a grandson of the deceased. On 29 April 2026 Kaine affirmed an affidavit of plight and condition in which he deposed as to how he came to be in possession of the original 21 December 2020 Will, and how he stored the 21 December 2020 Will. Kaine's evidence is outlined below. 64 Kaine deposed that in or around August or September 2022 Phillip and his wife Cheryl Skender provided Kaine with the original 21 December 2020 Will and requested that it be stored at his home. Phillip died on 21 September 2022. Kaine further deposed that from receipt until 5 March 2026 he stored the original 21 December 2020 Will in a folder in his home office. 65 As to the condition of the original 21 December 2020 Will upon receipt, Kaine deposed that it was stapled together and comprised four pages and annexed survey plan 81968 (that is, when stapled, the document comprised six pages in total). 66 Kaine deposed that no other person had access to the original 21 December 2020 Will other than his partner, Lauren Joanne Elizabeth Nelson. He also deposed that on 27 June 2024, at his request, Ms Nelson unstapled the original 21 December 2020 Will to scan the document so as to send a copy to the plaintiff; and on 5 March 2026 Kaine asked Ms Nelson to deliver the original 21 December 2020 Will to the office of Hall & Wilcox. -- 20 of 41 -- [2026] WASC 196 STRK J Page 21 67 Further, Kaine deposed that he had not marked, amended, written on, stapled or un-stapled, removed or added any pages to, or tampered with the 21 December 2020 Will at any time or in any way, and that the original 21 December 2020 Will provided to Hall & Wilcox was to the best of his knowledge in the same state and condition as when provided to him and when retrieved by Ms Nelson from his home office. Affidavit of plight and condition of Lauren Joanne Elizabeth Nelson 68 Ms Nelson is the partner of Kaine and on 28 April 2026 affirmed an affidavit of plight and condition. Ms Nelson's evidence is outlined below. 69 Ms Nelson deposed that Kaine asked her to scan the original 21 December 2020 Will and send a copy by email to the plaintiff following the death of the deceased. 70 Ms Nelson recalled that she retrieved the original 21 December 2020 Will from their home office and observed that it had two staples on the top left corner and comprised of four pages and annexed survey plan 81968 (that is, it was six pages in total). She further deposed that she un-stapled both staples on the document to feed it through the scanner, then stapled the 21 December 2020 Will back together again, using only one staple, and placed it back into the home office. 71 Ms Nelson deposed that at all other material times until 5 March 2026, the 21 December 2020 Will remained stored in a folder in the home office. 72 Ms Nelson also deposed that on 5 March 2026 Kaine requested that she deliver the 21 December 2020 Will to Hall & Wilcox. Her evidence was that she retrieved it from the home office and delivered it to Midaiah Harnett, a legal assistant in sole employ of Hall & Wilcox, at their office located at Level 19, 108 St Georges Terrace, Perth. Ms Nelson attached to her affidavit marked LN-1 an acknowledgment of receipt signed on 5 March 2026 by Ms Harnett. 73 Finally, it was Ms Nelson's evidence that other than as she had deposed (as summarised above), she had not marked, amended, written on, stapled or un-stapled, removed or added any pages to, or tampered with the 21 December 2020 Will at any time or in any way; and other than she had deposed, the original 21 December 2020 Will provided to Hall & Wilcox was to the best of her knowledge in all respects in the same state and condition as when provided to Kaine in 2022, and when -- 21 of 41 -- [2026] WASC 196 STRK J Page 22 she retrieved it from the home office and provided it to Hall & Wilcox on 5 March 2026. Further affidavits 74 Six further affidavits were read at trial. Affidavit of Benn Adam Skender 75 The plaintiff swore an affidavit on 10 February 2026 in support of the relief sought in this proceeding. 76 Among other things, the plaintiff deposed that on 21 November 2025 the parties executed a deed of settlement and release in relation to this proceeding (Deed), and that in accordance with the Deed, they had agreed to the making of orders by consent which included an order granting leave to withdraw the defendant's defence and counterclaim (which orders were made, as noted at [6] of these reasons). By the Deed a claim foreshadowed to be commenced by the defendant against the estate of the deceased for further provision under s 6 of the Family Provision Act 1972 (WA) was also compromised. 77 A copy of the Deed was attached to the plaintiff's affidavit. The parties to the Deed were the plaintiff, the defendant, Kristan and Kaine.36 The family background 78 By way of family background, the plaintiff deposed as follows: (a) the deceased was born on 27 October 1933 and died on 27 June 2024; (b) the deceased married Jack Skender on 1 November 1962 who died on 17 April 2020 (that is, Jack predeceased the deceased); (c) the deceased and Jack together had three biological children, being Phillip and Raymond (both of whom died in September 2022), and the defendant; (d) the deceased was survived by the defendant and six adult grandchildren, being: (i) the plaintiff and Candi (Raymond's biological children); 36 Affidavit of BA Skender sworn on 10 February 2026, BAS-1. -- 22 of 41 -- [2026] WASC 196 STRK J Page 23 (ii) Kaine, Jessie Lee Skender and Tanille Skender (the defendant's biological children); and (iii) Kristan (Phillip's biological child); and (e) after Jack's death, the deceased did not marry nor did she commence a de-facto relationship with any person. This remained the case as at the date of her death. The estate 79 In relation to the estate of the deceased, the plaintiff deposed to his belief that it was valued at approximately $1,041,283.52, and was comprised of the property known as 34 Evandale Road, Darch (the Darch Property), Western Australia; a nominal amount of cash held with Westpac Banking Corporation; and furniture and personal effects. 80 He also deposed to his belief that since 2021, the defendant had resided and continues to reside at the Darch Property with his wife, Kelly Skender, and his two children, Jessie and Tanille. The 21 December 2020 Will and renunciation 81 A copy of the 21 December 2020 Will was attached to the plaintiff's affidavit (without the survey plan attached). 82 As was described by the plaintiff, the 21 December 2020 Will recorded that the deceased: (a) appointed Phillip (now deceased) as executor of her estate, and her brother-in-law, Eddie, if Phillip was to predecease the deceased or be unwilling or unable to act; (b) bequeathed her estate in equal shares to the plaintiff, the defendant, Phillip (now deceased), Kristan and Kaine, and provided that should any beneficiary predecease the others, their share would be split evenly between the surviving beneficiaries. 83 The plaintiff deposed that Eddie on 17 December 2024 executed a deed of renunciation of all rights, powers and authorities given to him by the 21 December 2020 Will. -- 23 of 41 -- [2026] WASC 196 STRK J Page 24 Subsequent events 84 In his affidavit the plaintiff also described certain events that took place after the deceased executed the 21 December 2020 Will. Among other things he deposed that: (a) on 18 May 2021 the defendant and his wife sold their property and moved into the Darch Property with their daughters Jessie and Tanille; (b) from May 2021 until the deceased's death in June 2024, the defendant, his wife, and their daughters lived with the deceased, and remain in the Darch Property; and (c) between January 2022 until 27 June 2024 (the date the deceased died), the deceased was admitted to St John of God Hospital in Subiaco, Perth, about five times. 85 The plaintiff deposed that on 17 July 2024 he lodged a caveat against probate in relation to the deceased (allocated number CAV 125 of 2024), and on or around 10 October 2024 the defendant filed an application for a grant of letters of administration with the 20 September 2022 Will annexed (known as PRO 5591 of 2024). As to the application made by the defendant, the plaintiff in his affidavit misdescribed the same. As is noted above at [3], by his application made in the Court's non-contentious probate jurisdiction the defendant sought to be granted administration of the estate of the deceased on the basis that the deceased had died intestate and that, as the deceased's surviving son, he was the only person entitled in distribution.37 86 Finally, the plaintiff deposed that should he be given a grant to administer the estate of the deceased, he would administer it according to the 21 December 2020 Will, the Deed and law. 87 The plaintiff attached 13 documents to his affidavit which were marked 'BAS-1' to 'BAS-13' respectively, and which comprised the following: the Deed dated 21 November 2025; the death certificate of the deceased; a statement of assets and liabilities of the estate dated 27 June 2024; a statement of assets and liabilities of the estate dated February 2026; a copy of the certificate of title for the Darch Property; a copy of the 21 December 2020 Will (without the survey plan attached); a copy of the renunciation of Eddie dated 17 December 2024; a copy of a Landgate transfer record for a property known as 58 Civic 37 Affidavit of HH Tran sworn on 12 February 2026, Annexure A. -- 24 of 41 -- [2026] WASC 196 STRK J Page 25 Drive, Wanneroo, Western Australia; a bundle of medical records relating to the deceased obtained from St John of God Hospital; the 20 January 2022 Will (without the survey plan attached); the Codicil; the 20 September 2022 Will and Codicil (without the survey plan attached); and the caveat filed on 17 July 2024. Affidavit of Hoang Huy Tran 88 Hoang Huy Tran is a solicitor employed by Legal Care Australia, the defendant's legal representatives in this proceeding. On 12 February 2026 Mr Tran swore an affidavit in which he deposed that: (a) on or about 6 August 2024, he posted the application for letters of administration to the Court on behalf of the defendant in relation to the estate of the deceased; (b) on or about 4 December 2024, he met Ms Pavlovich at the office of Legal Care Australia and received from her a renunciation of her right to be granted probate of the 20 January 2022 Will; and (c) on or about 5 December 2024, he met with Ms Scarisini at the office of Legal Care Australia and received from her a renunciation of her right to be granted probate of the 20 January 2022 Will. 89 Attached to Mr Tran's affidavit and marked 'Annexure A' to 'Annexure C', respectively, were copies of the defendant's application for letters of administration; the renunciation of Ms Pavlovich with respect to the 20 January 2022 Will; and the renunciation of Ms Scarisini with respect to the 20 January 2022 Will. Affidavit of Brittany-Anne Forsyth 90 Brittany-Anne Forsyth is a solicitor employed by Hall & Wilcox, the plaintiff's legal representatives in this proceeding. On 27 February 2026 Ms Forsyth swore an affidavit in which she deposed to the following. 91 First, that Ms Forsyth had sought and received written confirmation from Kaine that he had no objection to the Deed (to which he was a named party) being annexed to the plaintiff's affidavit and put before the Court for the purposes of the trial of this action. -- 25 of 41 -- [2026] WASC 196 STRK J Page 26 92 Secondly, that Ms Forsyth had sought and received written confirmation from Kristan that he had no objection to the Deed (to which he was also a named party) being annexed to the plaintiff's affidavit and before the Court for the purposes of the trial of this action. 93 Thirdly, that Ms Forsyth had sought and received written confirmation from Mr Meyers that he renounced his right to be granted probate of the 20 September 2022 Will and Codicil. 94 Fourthly, that Ms Forsyth had sought and received written confirmation from Ms Pavlovich that she renounced her right to be granted probate of the 20 September 2022 Will and Codicil. 95 Ms Forsyth attached to her affidavit various documents marked BF-1 to BF-10, which included various communications as between Hall & Wilcox and Kaine, Kristan, Mr Meyers, and Ms Pavlovich, respectively. Affidavit of Sophia Christina Aguasa 96 Sophia Christina Aguasa is also a solicitor employed by Hall & Wilcox. On 3 March 2026 Ms Aguasa affirmed an affidavit in which she attached a true copy of the deed of renunciation of the 20 September 2022 Will and Codicil executed by Ms Pavlovich on 26 February 2026, received by Hall & Wilcox on 3 March 2026. Affidavit of Renee Marie Lenzarini 97 Renee Marie Lenzarini is a legal assistant employed by Hall & Wilcox. On 24 March 2026 Ms Lenzarini affirmed an affidavit in which she deposed to serving Candi with various documents filed in this proceeding including, among other things, the writ of summons dated 16 January 2025; a copy of the orders made on 4 March 2026; a copy of the transcript of the part-heard trial; various affidavits; and a letter from Hall & Wilcox stating that should Candi wish to participate in this action, she should file a memorandum of appearance in this proceeding within 10 days. Affidavit of Thomas Elwyn Creek 98 Thomas Elwyn Creek is a law graduate employed by Hall & Wilcox. On 26 March 2026 he swore an affidavit in which he deposed to his understanding of how his firm came to hold the original 21 December 2020 Will with attached survey plan 81968; his -- 26 of 41 -- [2026] WASC 196 STRK J Page 27 observations as to the condition of the 21 December 2020 Will; and to having personally delivered the 21 December 2020 Will to the Court. Original 21 December 2020 Will 99 As was deposed to by Mr Creek, the original 21 December 2020 Will was produced to the Court. Attached to the document was the two page survey plan 81968. Disposition 100 In the disposition of the matter, I had regard to the following. Were all necessary persons named as defendants or given notice of the proceeding? 101 As to who was a necessary party to a probate action, it is well accepted that not every person who has an interest in the estate of the deceased must be made a defendant to the writ. The practice as to who are the necessary parties to a probate action has been said to be singularly inaccessible, but it has been suggested that at least the executor of a will should be a defendant to an action for a decree pronouncing against that will, as should a caveator.38 102 It has also been suggested that the circumstances will indicate which persons interested in the estate should be made defendants, although it may be prudent to cite every person interested.39 103 The Rules of the Supreme Court O 73 r 5 provides that on the application of the plaintiff, or of any other party who has pleaded in a probate action, a citation may be issued against any person who was not a party to the action, and has an interest adverse to the applicant, notifying them that if they do not enter an appearance in the action judgment may be given therein without further notice to that person. Also known as a 'citation to see proceedings', the function of such a citation is to bind interested parties by the res judicata associated with the grant of probate in solemn form in proceedings in which persons have a right to oppose the grant and are given notice.40 104 While it may be preferable to seek the issue of a citation on an interested party, if notice is given to an interested party, such notice 38 LexisNexis, Civil Procedure Western Australia (at 19 May 2026) at [73.1.5], citing Re Kuhl; Kuhl v Liebcheschel [1933] SASR 394, 395, 399. 39 LexisNexis, Civil Procedure Western Australia (at 19 May 2026) at [73.1.5], citing Wytcherley v Andrews (1871) LR 2 PD 327, 328, 329. 40 LexisNexis, Civil Procedure Western Australia (at 19 May 2026) at [73.5.2]. -- 27 of 41 -- [2026] WASC 196 STRK J Page 28 may be sufficient to bind the party in the result if the party does not seek to intervene having had notice.41 105 It was acknowledged on behalf of the plaintiff that the following persons had not been joined as parties to this probate proceeding and no citations had been issued to any of them:42 (a) Ms Pavlovich, who had been named as executor in the 20 January 2022 Will and the 20 September 2022 Will and Codicil; (b) Ms Scarisini, who had been named as the substitute executor in the 20 January 2022 Will; (c) Mr Meyers, who had also been named as an executor in the 20 September 2022 Will and Codicil; (d) Kristan and Kaine, who had been listed as beneficiaries in the 21 December 2020 Will, and had been listed under the heading 'Gifts' and 'Gifted Money' in the 20 January 2022 Will, and under the heading 'Gifts' in the 20 September 2022 Will and Codicil; and (e) Jessie, Tanille, 'Candy' (who I understood to be Candi) and 'Holly' (who was not further identified but I understood to be the daughter of Raymond's last spouse and not a blood relative of the deceased43), who had been listed under the heading 'Gifts' in the 20 September 2022 Will and Codicil. 106 In the disposition of this matter I considered whether all necessary parties had been joined, alternatively had been given notice of the proceeding. The persons named as executors 107 It is usual for the executor of a will to be named as a defendant to an action in which a decree pronouncing against that will is sought. In this case, all persons named as an executor or substitute executor under the 21 December 2020 Will, and the later 20 January 2022 Will and the 20 September 2022 Will and Codicil had predeceased the deceased or renounced the grant. 41 LexisNexis, Civil Procedure Western Australia (at 19 May 2026) at [73.5.2], citing Osborne v Smith (1960) 105 CLR 153, see also Gangemi v Monaco [2020] WASC 183 [8]. 42 Plaintiff's outline of submissions filed on 12 February 2026 par 26. 43 ts 11 (4 March 2026). -- 28 of 41 -- [2026] WASC 196 STRK J Page 29 108 Philip had predeceased the deceased and Eddie had renounced all rights, powers and authorities given to him by the 21 December 2020 Will. In the circumstances it was not necessary that Eddie be joined to this probate proceeding.44 109 As to Ms Pavlovich, Ms Scarisini and Mr Meyers, counsel for the plaintiff noted that:45 (a) they have no beneficial interest in the Estate as they are not beneficiaries under any of the competing Wills and are only listed as executors; (b) they have neglected to obtain probate within 2 months from the death of the Deceased in accordance with section 37 of the Administration Act 1903 (WA); and (c) Marlene and Sina renounced their role and duties as named executors under the 20 January 2022 Will. 110 Ms Pavlovich and Mr Meyers later renounced their respective right to be granted probate of the 20 September 2022 Will and Codicil.46 111 On behalf of the plaintiff it was submitted that by reason of these matters, Ms Pavlovich, Ms Scarisini and Mr Meyers were not necessary parties to this probate proceeding, nor was their attendance required for the proper determination of the application.47 I accepted this to be the case. Intestacy 112 If the 20 January 2022 Will or 20 September 2022 Will and Codicil were effective so as to revoke the previous testamentary instrument (the 21 December 2020 Will), but otherwise failed on their terms, then a partial intestacy would arise. 113 In this case, on an intestacy, the Court would be empowered to grant administration of the estate of a person who died intestate to 'one or more of the persons entitled in distribution to the estate of the intestate' who are over the age of 18 years.48 The normal approach to the exercise of this power is to grant letters of administration to the 44 Affidavit of BA Skender sworn on 10 February 2026 par 17, BAS-7. 45 Plaintiff's outline of submissions filed on 12 February 2026 par 27. 46 Affidavit of B Forsyth affirmed on 27 February 2026 pars 10 - 13, 14 - 17; Affidavit of SC Aguasa affirmed on 3 March 2026 par 4. 47 Plaintiff's outline of submissions filed on 12 February 2026 par 28. 48 Administration Act s 25(1)(a). -- 29 of 41 -- [2026] WASC 196 STRK J Page 30 person who has the greatest interest as a beneficiary in the intestate estate.49 114 Section 14 of the Administration Act details the distribution of the estate where a person dies intestate. Relevantly, where the deceased dies leaving issue but no husband or wife, the issue shall be entitled in accordance with subsection (2b) to the whole of the intestate property.50 115 As the deceased had three children (Phillip, Raymond and the defendant), one who survived the deceased and two who predeceased her but left children who survived the deceased, by operation of subsection (2b), those entitled in distribution in an intestacy would be: (a) the defendant; (b) Kristan (as Phillip's issue); and (c) the plaintiff and Candi (as Raymond's issue). Kristan Skender and Kaine Skender 116 As to the joinder of Kristan and Kaine, I note that as Phillip predeceased the deceased, by operation of cl 4.2, the beneficiaries under the 21 December 2020 Will were the plaintiff, the defendant, Kristan and Kaine. If there was an intestacy or partial intestacy, Kristan would also be a person entitled in distribution by operation of s 14(2b) of the Administration Act. 117 Despite this, neither Kristan nor Kaine had been joined as parties to the probate proceeding. Both were however on notice of the proceeding as both were parties to the Deed. As named beneficiaries to the 21 December 2020 Will, both would benefit from an order pronouncing the force and validity of the 21 December 2020 Will (the order that was in the end promoted unopposed). 118 In the circumstances, counsel for the plaintiff submitted that Kristan and Kaine did not need to be joined as parties to the proceeding and their attendance ought not be required.51 In support of the same, counsel referred to the approach adopted by Lemonis J in Allen v Quinn, where his Honour proceeded on the basis that the absence of beneficiaries to a will as parties to a proceeding would not affect the 49 Britt v Office of the State Coroner [2022] WASCA 75 [67]; Hart v Hart [2010] WASC 329 [17]; Fairburn v Healey [2009] WASC 114 [7]. 50 Administration Act s 14 (table, item 5). 51 Plaintiff's outline of submissions filed on 12 February 2026 par 29; ts 10 (4 March 2026). -- 30 of 41 -- [2026] WASC 196 STRK J Page 31 assessment of whether orders should be made as to that will's validity, and nor would the absence of beneficiaries affect his Honour's assessment as to what might be appropriate costs orders.52 119 In all of the circumstances, particularly given that both Kristan and Kaine were parties to the Deed by which this proceeding was compromised, I was satisfied that it was not necessary to join either of them to the proceeding. They were plainly on notice of it, and by the Deed had agreed to the making of the orders promoted by the plaintiff. Jessie, Tanille, Candi and Holly 120 Neither Jessie, Tanille, Candi or Holly were joined as defendants to this proceeding. Jessie and Tanille are the children of the defendant. Candi is the plaintiff's sister. Holly is the daughter of Raymond's last spouse and not a blood relative of the deceased. Candi and the plaintiff are Holly's step siblings (but not related by blood).53 Counsel for the plaintiff confirmed that all were over the age of 18.54 121 Counsel for the plaintiff submitted that the purported gifts to each of them under the 20 September 2022 Will and Codicil must fail for uncertainty as that will did not specify by words or numeric amounts what each should receive under the will, and therefore they were not beneficiaries under any of the competing wills.55 On that basis, it was submitted that it was not necessary to join any of them as defendants. 122 As is noted above, if the 20 January 2022 Will or 20 September 2022 Will and Codicil were to be effective to the extent that they operated to revoke the previous testamentary instrument (the 21 December 2020 Will) but fail on their terms, then a partial intestacy would arise. In such a scenario, as explained at [115] of these reasons, unlike Jessie, Tanille and Holly, in an intestacy Candi would be a person entitled in distribution to approximately one sixth of the estate.56 Consequentially, the grant of letters of administration with the 21 December 2020 Will annexed would have the effect of depriving Candi of any potential distribution. 52 Plaintiff's outline of submissions filed on 12 February 2026 par 29, citing Allen v Quinn [13]. 53 ts 11 (4 March 2026). 54 ts 12 (4 March 2026). 55 Plaintiff's outline of submissions filed on 12 February 2026 par 30; ts 10 - 11 (4 March 2026). Counsel for the plaintiff drew the Court's attention to general principles surrounding the construction of wills in Joseph Mark Zuvela as Executor of the Estate of Marija Zuvela Grizun v Joseph Mark Zuvela Beneficiary of the Estate Marija Zuvela Grizun [2015] WASC 410 [54] citing Pringle v Pringle [2010] WASC 206 [25]. 56Administration Act s 14 (table, item 5), (2)(b); ts 12 - 13 (4 March 2026). -- 31 of 41 -- [2026] WASC 196 STRK J Page 32 123 At the hearing on 4 March 2026 counsel for the plaintiff accepted that there may therefore be a need to join Candi to the proceeding.57 After the trial on 4 March 2026 was adjourned part heard, the plaintiff put Candi on notice of the proceeding and she was provided with a copy of an order made on 25 March 2026 directing that should she wish to intervene in the action, she ought to give notice by filing a notice of appearance within 10 days of the date of the orders.58 Service on Candi was established.59 The plaintiff did not move for her joinder, and Candi did not enter an appearance nor did she seek to be heard in the proceeding. In the circumstances, I accepted that it was not necessary for Candi to be formally joined as a party to the proceeding. 124 Neither Jessie, Tanille nor Holly could be said to have a substantial interest under the 20 September 2022 Will and Codicil. Consistent with the approach adopted by Lemonis J in Allen v Quinn, I proceeded on the basis that their absence as parties would not affect the assessment of the validity of the 20 September 2022 Will and Codicil. Further, the specific gift clause (reproduced at [61(c)] of these reasons) was silent as to what gifts were left to them. On its face, that part of the 20 September 2022 Will and Codicil appeared likely to be assessed as being void for uncertainty.60 The plaintiff did not move for their joinder and in the circumstances, I accepted that it was not necessary for Candi, Jessie, Tanille or Holly to be formally joined as parties to the proceeding. 125 In these circumstances, I was satisfied that all necessary parties were on notice of the proceeding or joined. 21 December 2020 Will 126 I then turned to first consider the validity of the 21 December 2020 Will and whether the Court should pronounce its force and validity. The terms of the 21 December 2020 Will 127 The deceased left an estate with an estimated net value of about $1,041,283.52, the main asset of which was the Darch Property.61 The 57 ts 17 (4 March 2026). 58 Order 1 of the orders made on 25 March 2026. 59 Affidavit of B Forsyth affirmed on 8 May 2026. 60 Joseph Mark Zuvela as Executor of the Estate of Marija Zuvela Grizun v Joseph Mark Zuvela Beneficiary of the Estate Marija Zuvela Grizun [54], citing Pringle v Pringle [25]. See in particular [25(12)]. 61 Affidavit of BA Skender sworn on 10 February 2026 par 13. -- 32 of 41 -- [2026] WASC 196 STRK J Page 33 terms of the 21 December 2020 Will are described at [54] of these reasons. 128 The 21 December 2020 Will was made following the death of the deceased's husband Jack in April 2020,62 and prior to the death of the deceased's sons Phillip and Raymond in September 2022.63 Its terms are consistent with these circumstances. The preparation of the 21 December 2020 Will 129 The 21 December 2020 Will was prepared by the deceased with the assistance of Charthill Legal.64 It was made before the deceased's five hospital admissions between January 2022 and June 2024,65 and before the defendant began living with the deceased, along with the defendant's wife and two children, in May 2021.66 Due execution 130 Due execution of a will is presumed where it is signed by the deceased in the presence of two witnesses, both present at the time of signing, and who subsequently sign the will to attest that the deceased signed it in their presence. The attestation of the witnesses must occur in the deceased's presence.67 131 The plaintiff submitted that the 21 December 2020 Will was duly executed by the deceased, and that by reason of the following facts the Court should be satisfied of due execution:68 (a) The 21 December 2020 Will is in writing; (b) The 21 December 2020 Will was signed by the deceased on each page in the presence of two attesting witness, being: (i) Eda Albert, Administrator; and (ii) Julius Lewin, Solicitor; and (c) The 21 December 2020 Will was prepared by Charthill Legal. 62 Affidavit of BA Skender sworn on 10 February 2026 par 7. 63 Affidavit of BA Skender sworn on 10 February 2026 par 8. 64 Plaintiff's outline of submissions filed on 12 February 2026 par 5. 65 Affidavit of BA Skender sworn on 10 February 2026 par 20. 66 Affidavit of BA Skender sworn on 10 February 2026 pars 14, 18. 67 Wills Act s 8. 68 Plaintiff's outline of submissions filed on 12 February 2026 par 5. -- 33 of 41 -- [2026] WASC 196 STRK J Page 34 132 The witnesses did not make an affidavit in support of due execution. However, the attestation clause was in the following unequivocal terms: Attestation by witnesses: We saw Teresa Lucy Skender sign this Will and now sign as witnesses in his [sic] presence and in the presence of each other[.] 133 Save for the cover page, each page of the 21 December 2020 Will and the attached survey plan was signed by the deceased as testatrix and the two witnesses. 134 I was satisfied that the presumption of due execution arose in respect of the 21 December 2020 Will. As that presumption was not displaced, the 21 December 2020 Will was taken to be duly executed.69 Testamentary intention, testamentary capacity, and knowledge and approval 135 As noted above, due execution gives rise to three presumptions: testamentary intention, testamentary capacity, and knowledge and approval of the contents of the will. Those presumptions arose in relation to the 21 December 2020 Will by reason of due execution. Testamentary capacity 136 The presumption of testamentary capacity arose from due execution,70 and the plaintiff relied solely upon the presumption to establish the same.71 137 There was no evidence that displaced the presumption. Indeed, by the time the deceased made the 21 December 2020 Will, her husband had predeceased her. By that will the deceased provided for a number of persons related to her whom could be considered 'the objects of the deceased's affection'.72 138 The 21 December 2020 Will was made three and a half years before the deceased died and before the defendant and his family moved to reside with the deceased. Further, the errors in both the 20 January 2022 Will and 20 September 2022 Will and Codicil (among other things, errors to the spelling of names and dates, inconsistencies 69 Fisher v Kay [83], citing Re Gramp, Deceased; Finck v Gramp [1952] SASR 12. 70 Fisher v Kay [85]; Khan v Khan [26]; Allen v Quinn [24] - [25]. 71 Plaintiff's outline of submissions filed on 12 February 2026 par 49(b); ts 9 - 10 (4 March 2026). 72 Allen v Quinn [21]. -- 34 of 41 -- [2026] WASC 196 STRK J Page 35 in handwriting, unclear and incomplete clauses and incorrect spelling73) were not present in the 21 December 2020 Will. Knowledge and approval, and testamentary intention 139 Again, the presumption of testamentary intention and knowledge and approval of the contents of the 21 December 2020 Will arose from due execution,74 and the plaintiff relied solely upon the presumption to establish the same.75 140 On 27 March 2025 a defence and counterclaim was filed by the defendant in this matter. The defence denied the plaintiff's claim that the deceased knew and approved of the contents of the 21 December 2020 Will. However, this was withdrawn by order of the Court made on 26 November 2025 and the former pleading was not a factor I weighed in the disposition of this matter.76 141 Again, there was no evidence that displaced the presumptions of testamentary intention and knowledge and approval. 142 Testamentary capacity (which in this case could be presumed) is a necessary precondition to the establishment of knowledge and approval.77 143 The 21 December 2020 Will was not prepared by a person who took a substantial benefit under it. It was made before the defendant and his family relocated to reside with the deceased in May 2021.78 In contrast to the later wills, the 21 December 2020 Will was prepared with assistance of a legal practitioner.79 144 Further, the distribution clauses were complete, cogent and certain (again, in contrast to the later wills80) and provision was made for the instance that one beneficiary predeceased the remaining beneficiaries.81 145 As is noted above, when an application for a grant of probate in solemn form is pressed, the Court is under no duty, statutory or otherwise, to satisfy itself, by any form of independent investigation, of 73 Described by the plaintiff in his affidavit sworn on 10 February 2026 at pars 23, 28 and 29. 74 Fisher v Kay [85]; Khan v Khan [26]; Allen v Quinn [24] - [25]. 75 Plaintiff's outline of submissions filed on 12 February 2026 par 49(b); ts 9 - 10 (4 March 2026). 76 Order 1 of the orders made on 26 November 2025. 77 Burgess v Davey [2025] WASC 343 [79]. 78 Affidavit of BA Skender sworn on 10 February 2026 par 14. 79 Plaintiff's outline of submissions filed 12 February 2026 par 5. 80 Affidavit of BA Skender sworn on 10 February 2026 pars 22(b), 28(b). 81 Affidavit of BA Skender sworn on 10 February 2026 par 16(b). -- 35 of 41 -- [2026] WASC 196 STRK J Page 36 the validity of the will of which probate is sought.82 In this case, due execution gave rise to the presumptions of testamentary intention, testamentary capacity, and knowledge and approval of the contents of the 21 December 2020 Will. As there was no evidence that displaced the presumptions, I could be (and was) satisfied that the 21 December 2020 Will was made by the deceased with the requisite testamentary intention, testamentary capacity, and knowledge and approval. Later testamentary instruments 146 After the deceased made the 21 December 2020 Will, a number of later testamentary documents came into existence. 147 Again, I proceeded cognisant that in the interests of the due administration of justice, the Court may acquiesce in a procedural process in which selective notice was taken of some, and not other, evidence in order to accommodate an application for a solemn form grant in which all adversarial interests acquiesce.83 148 In this case the plaintiff disclosed to the Court the existence of the later wills. The plaintiff and defendant made affidavits of scripts that were consistent in that regard. Only the defendant held a substantial interest under the later wills. All those who had been named executor or substitute had renounced. The defendant elected not to continue to defend the probate proceeding or to propound a later will. Applying the principles which EM Heenan J summarised and applied in Hoare v Reyburn (in his capacity as the Executor named in the Purported Will), this may have been sufficient of itself to allow the Court to make a grant of probate of the 21 December 2020 Will. 149 However, I was cognisant that the presumption of due execution may have arisen in respect of the 20 January 2022 Will and the 20 September 2022 Will and Codicil as they appeared to have been signed by the deceased in the presence of two witnesses. (As to the Codicil, this document was only witnessed by one person, and therefore the presumption of due execution could not arise.) I therefore also considered whether there were circumstances which gave rise to a well- founded suspicion in relation to the later wills. 150 In considering whether there were circumstances which gave rise to a well-founded suspicion, I had regard to the following matters. 82 In Re Levy (Deceased) (No 2) (665). 83 Burgess v Davey [20], citing Estate Kouvakas; Lucas v Konakas [262]. -- 36 of 41 -- [2026] WASC 196 STRK J Page 37 151 The later wills and the Codicil were to the defendant's substantial benefit in circumstances where from May 2021 (before the first of the later wills was made) until the deceased's death, the defendant and his family lived with the deceased,84 and the significant departure from the terms of the 21 December 2020 Will was not explained. 152 While the 20 January 2022 Will and 20 September 2022 Will and Codicil did provide an explanation as to why Phillip and Raymond were excluded, there was no explanation as to why Kristan, Kaine and the plaintiff were to receive an unspecified gift rather than take an equal share of the residuary of the estate with the defendant (as had been the deceased's recorded intention in the 21 December 2020 Will). 153 The circumstances gave rise to a suspicion as to the influence that the defendant might have exercised over the deceased. 154 Further, the use of will kits in the preparation of the 20 January 2022 Will and 20 September 2022 Will and Codicil indicated the lack of involvement of a legal practitioner. It appeared that the later wills were not drawn with the benefit of the deceased receiving independent legal advice regarding their terms, and there is no evidence as to whether there had been an opportunity for reflection by the deceased. 155 I also noted that the later wills also contained numerous spelling and typographical errors.85 156 The attempt at making specific gifts was also compromised by a failure to specify by words or numeric amounts what each beneficiary of a specific gift would receive. The nomination of particular individuals to receive a specific gift suggested that the deceased intended that those persons would take a share of her estate. The lacuna gave rise to a suspicion that when executed, the later wills did not comprehensively record the deceased's testamentary wishes. 157 Moreover, the 20 September 2022 Will and Codicil was inconsistent in its own terms as it purported to include a codicil to the 20 January 2022 Will while also purporting to revoke all previous wills and other testamentary dispositions. 158 In his affidavit sworn on 10 February 2026, the plaintiff deposed that between January 2022 until 27 June 2024 the deceased was admitted to St John of God Hospital in Subiaco approximately five 84 Affidavit of BA Skender sworn on 10 February 2026 pars 18 - 19. 85 Affidavit of BA Skender sworn on 10 February 2026 pars 23(b) and 29. -- 37 of 41 -- [2026] WASC 196 STRK J Page 38 times.86 He attached to his affidavit a copy of what he described as the 'Admission Forms, Discharge Forms, Patient Registration Forms, extracts of the Progress notes and ACAT Application dated between 2022 and 2024 relating to the Deceased from the St John of God Hospital'.87 Counsel for the plaintiff emphasised passages within the documents which described there being a complex family situation, and further recorded that concerns had been raised by family members as to the isolation of the deceased, and emotional and financial abuse.88 159 I was satisfied that these matters when considered together gave rise to a well-founded suspicion that the later wills did not express the mind of the deceased. They were circumstances that attended, or at least were relevant to, the preparation and execution of the later wills and Codicil. Consistent with the approach adopted recently by Bydder J, I proceeded on the basis that it was neither necessary nor appropriate to do more than so find.89 160 The trial proceeded in an uncontested manner and, necessarily, the evidence relied upon by the plaintiff was not the subject of any cross- examination. The Court did not hear from the defendant regarding factual matters which were previously in dispute in the proceeding. The fact that evidence was not contested was a function of the consent orders made following the settlement reached by the parties. It is appropriate to here record that while I was satisfied that the circumstances gave rise to a well-founded suspicion that the later wills did not express the mind of the deceased, I made no finding as to whether in fact there was influence exercised over the deceased or as to the veracity of any concerns raised by family members (described in [158] of these reasons). Conclusion and costs 161 I was satisfied that the deceased was widowed at the time of her death, and did not remarry or enter a de-facto relationship prior to or at the time of her death. 162 For the reasons set out above, at the conclusion of the undefended trial, an order was made pronouncing the force and validity of the will of the late Teresa Lucy Skender dated 21 December 2020 in solemn form of law. In the end, counsel for the plaintiff did not move for an 86 Affidavit of BA Skender sworn on 10 February 2026 par 20. 87 Affidavit of BA Skender sworn on 10 February 2026 par 20. 88 Plaintiff's outline of submissions filed on 12 February 2026 par 34. 89 Hughes v Grierson [60]. -- 38 of 41 -- [2026] WASC 196 STRK J Page 39 order pronouncing against the force and validity of the later wills, and I accepted that no such order was required. 163 The named executor of the 21 December 2020 Will (Phillip) had predeceased the deceased, and the substitute executor (Eddie) had renounced the grant. As a beneficiary, the plaintiff was an appropriate party to be granted letters of administration with the 21 December 2020 Will annexed. The defendant had consented to the same and the other beneficiaries (Kristan and Kaine) were parties to the Deed which contemplated the same. 164 After hearing from counsel for the plaintiff and the defendant as to the form of order, it was ordered that a Registrar would issue a grant of letters of administration with the will of Teresa Lucy Skender dated 21 December 2020 annexed in solemn form of law in favour of the plaintiff, with the terms of the grant to be settled by a Registrar.90 165 As to the caveat, it was lodged in July 2024. As six months had elapsed after its entry and no order had been made extending its operation, as at the date of trial the caveat had expired and was of no effect.91 It was therefore not necessary in the circumstances to make an order removing the caveat pursuant to the Administration Act s 63(1). 166 As to costs, the Deed expressly provided for the same.92 In the circumstances, the parties were content for there to be no order made as to costs. 90 ts 42 - 45 (14 May 2026). 91 Non-Contentious Probate Rules 1967 (WA) r 33(3). 92 Affidavit of BA Skender sworn on 10 February 2026, BAS-1, page 16. -- 39 of 41 -- [2026] WASC 196 STRK J Page 40 Sch A - Orders made on 14 May 2026 -- 40 of 41 -- [2026] WASC 196 STRK J Page 41 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 20 MAY 2026 -- 41 of 41 --