CAHILL -v- MORGAN [2026] WASC 194

[2026] WASC 194 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : CAHILL -v- MORGAN [2026] WASC 194 CORAM : BYDDER J HEARD : ON THE PAPERS DELIVERED : 19 MAY 2026 FILE NO/S : CIV 1996 of 2024 BETWEEN : HUGH STEPHEN CAHILL Plaintiff AND JENNIFER WENDY COCKBURN MORGAN First Defendant JILLIAN BETTY BARBARA COCKBURN HALL Second Defendant JOANNA COCKBURN WALSH Third Defendant JEANNE AND JOSEPH JUJNOVICH Fourth Defendant Catchwords: Wills - Probate - Application for proof in solemn form of the will of the deceased - Turns on own facts -- 1 of 15 -- [2026] WASC 194 Page 2 Legislation: Wills Act 1970 (WA) s 8 Result: Orders made Category: B Representation: Counsel: Plaintiff : No appearance First Defendant : No appearance Second Defendant : No appearance Third Defendant : No appearance Fourth Defendant : No appearance Solicitors: Plaintiff : Sunstone Legal First Defendant : Solomon Hollett Lawyers Second Defendant : Solomon Hollett Lawyers Third Defendant : Solomon Hollett Lawyers Fourth Defendant : Integra Legal Cases referred to in decision: Banks v Goodfellow (1870) LR 5 QB 549 Fairclough v Cvitan [2019] WASC 370 Mott v Hill [2021] WASC 43 Pettit v Waters-Pettit [2026] WASC 25 Vandeleur v French [1991] 1 Qd R 481 Wheatley & Anor v Edgar & Ors [2003] WASC 118 -- 2 of 15 -- [2026] WASC 194 BYDDER J Page 3 BYDDER J: Introduction 1 Gail Cockburn James (the deceased) died on 14 September 2023 at the age of 78.1 2 The plaintiff commenced this action on 23 August 2024 seeking to prove in solemn form a will executed by the deceased on 9 May 2018 (the 2018 Will). 3 On 18 September 2024, the first, second and third defendants counterclaimed against the plaintiff seeking to prove in solemn form a will executed by the deceased on 4 December 2016 (the 2016 Will). 4 On 30 October 2024, the first-named and second-named fourth defendants supported the plaintiff's action seeking proof in solemn form of the 2018 Will. However, if the plaintiff's application was unsuccessful the fourth defendants counterclaimed seeking to prove a will executed by the deceased on 30 May 2002 (the 2002 Will). 5 On 20 November 2025, Registrar Davies made orders by consent of the parties dismissing all of the defendants' claims (including crossclaims) with no orders as to costs. 6 On 8 December 2025, Registrar Davies made further orders by consent of the parties: 1. The matter proceed to trial on an undefended basis pursuant to Order 73, Rule 19 of the Rules of the Supreme Court 1971. 2. The plaintiff enter the action for trial, within 7 days of these orders. 3. Subject to any orders of the trial Judge: (a) the matter be determined on the papers without attendance of the parties on a date to be fixed for: (i) an order pronouncing that the will of Gail Cockburn James executed on 9 May 2018 has force and effect in solemn form of law as the will of Gail Cockburn James; and 1 Affidavit of Hugh Stephen Cahill sworn 22 January 2026 and filed 27 January 2026 (first affidavit) [30]. -- 3 of 15 -- [2026] WASC 194 BYDDER J Page 4 (ii) an order directing a Probate Registrar to settle a grant of Probate in solemn form to the plaintiff, Hugh Stephen Cahill; (b) the evidence of the witnesses supporting the propounding of the will may be adduced by affidavit without the need of the witnesses to attend in person; and (c) the plaintiff must file any Affidavits, Submissions and List of Authorities upon which the plaintiff intends to rely at trial at least within 21 days from the date of these Orders. 7 Having reviewed the papers, I am satisfied that it is appropriate for the plaintiff's action to be determined on the papers. The evidence and my findings of fact 8 Three affidavits have been filed by the plaintiff and are in evidence: (a) the plaintiff's affidavit sworn 22 January 2026 and filed 27 January 2026 (first affidavit); (b) the plaintiff's affidavit sworn 17 February 2026 and filed 18 February 2026 (second affidavit); and (c) the affidavit of Heather Anne Williams sworn 15 May 2026 and filed 18 May 2026 (Williams affidavit). 9 I accept the evidence in the first affidavit, the second affidavit and the Williams affidavit. The evidence is uncontested and internally consistent. 10 On the basis of that evidence and the admissions made by the defendants in their respective defences to the statement of claim, I make the following findings of fact. 11 The deceased was born on 21 April 1945 and died on 14 September 2023 aged 78 years. 12 The deceased had been married but divorced in 2002. The deceased did not re-marry and did not have a domestic or de facto partner when she died. -- 4 of 15 -- [2026] WASC 194 BYDDER J Page 5 13 The deceased was survived by: (a) three sisters, who are the first, second and third defendants; and (b) a daughter named Judith. 14 During her lifetime the deceased executed at least four wills. 15 On 19 September 1996, the deceased executed a will which gifted her estate to her then-husband. 16 On 30 May 2002, the deceased executed the 2002 Will, which: (a) unconditionally affirmed that the deceased was then of sound mind; (b) affirmed that the 2002 Will was an act of her own free choice; (c) declared the 2002 Will to be her last will and testament; (d) revoked all previous wills made by the deceased; (e) appointed the third defendant as her executrix; (f) made provision for payment out of her estate for funeral and testamentary expenses and probate and other duties related to her estate; (g) gifted her estate as follows: (i) her farm in Bakers Hill, Western Australia (Farm) to the fourth defendants (or their children if they predeceased her), together with all plant, machinery, stock and farming produce; (ii) the contents of her house located on the Farm to the first, second and third defendants; (iii) the funds in a trust account to the first, second and third defendants and their mother, who died in 2015; and (iv) the balance of her estate to the first, second and third defendants and their mother as tenants in common in equal shares; -- 5 of 15 -- [2026] WASC 194 BYDDER J Page 6 (h) included a direction that should their mother die before the deceased then the first, second and third defendants would take their mother's share as tenants in common in equal shares; and (i) included a statement of due consideration of the first, second and third defendants and their mother in making the 2002 Will, to the effect that the deceased bore no animosity toward her mother or sisters and after proper consideration, including of her relationships with those named in the 2002 Will, the deceased wished the terms of the 2002 Will to apply. 17 On 9 December 2016, the deceased executed the 2016 Will which: (a) revoked all previous wills; (b) appointed the first, second and third defendants as executors; (c) made provision for payment out of her estate for funeral and testamentary expenses and probate and other duties related to her estate; and (d) gifted her estate to the first, second and third defendants. 18 On 20 March 2017, the deceased attended at the offices of the law firm Cullen Macleod. She met the plaintiff there for the first time. 19 The plaintiff is an experienced legal practitioner, having been admitted for more than 35 years. In the last 25 years or so, the plaintiff has acted as an executor, attorney, guardian and trustee as part of his legal practice on behalf of clients or in respect of client matters. He has practised exclusively in the areas of will and estate planning, deceased estates, trusts and general commercial law. 20 At all times relevant to the making of the 2018 Will, the plaintiff was employed at Cullen Macleod Lawyers as a principal and the Head of Practice - Wills & Succession Planning. 21 When the deceased arrived at Cullen Macleod's offices on 20 March 2017, she met with the plaintiff who saw her in private. The plaintiff observed the deceased's demeanour and level of engagement and deliberately asked her a series of open-ended questions. On the basis of his observations and her answers, the plaintiff formed the view that the deceased had testamentary capacity. -- 6 of 15 -- [2026] WASC 194 BYDDER J Page 7 22 The plaintiff took instructions from the deceased about a new will. The deceased told him that she was not happy with her previous documents, including the 2016 Will. Based on her comments, the plaintiff formed the view that there were issues between the deceased and her sisters. In contrast, the deceased spoke highly of her friends and neighbours the fourth defendants, who had provided friendship and care both personally and of the Farm over a long period. 23 The deceased was adamant in her instructions that she did not want the Farm sold. Instead, she wanted the Farm to go to the fourth defendants in recognition and appreciation of their friendship and assistance. 24 On 7 April 2017, the plaintiff wrote to the solicitors who prepared the 2016 Will on the deceased's instructions. The plaintiff requested that they provide him with the deceased's safe custody packet and a copy of their file in respect of the preparation of the 2016 Will. The plaintiff received those papers on 23 June 2017. 25 On 12 October 2017, the plaintiff wrote to Dr Dung Do-Nguyen seeking his expert opinion on the deceased's testamentary capacity. Dr Do-Nguyen is a consultant physician and geriatrician. 26 The letter noted that Cullen Macleod had been asked to advise the deceased in relation to her will and estate and continued: To do so, we need to be certain that she has capacity to make decisions. We understand that she has received a diagnosis of Alzheimer's disease. Before accepting instructions from Ms James, we have asked her to obtain an independent assessment of her capacity. However, your opinion is of crucial importance in determining whether Ms James is capable of giving us instructions. To summarise the classic test for testamentary capacity from Banks v Goodfellow (1870) LR 5 QB 549, it is essential that a person writing a will shall: (a) understand the nature of the act and its effect; (b) understand the extent of the property being disposed; (c) be able to comprehend and appreciate the claims on his/her estate; and -- 7 of 15 -- [2026] WASC 194 BYDDER J Page 8 (d) in relation to (c) that: (i) no disorder of the mind shall poison his affections, pervert his sense of right, or prevent the exercise of his natural faculties; (ii) no insane delusion shall influence his will in disposing of his property and bring about a disposal of it which, if the mind had been sound, would not have been made. Accordingly, we would greatly appreciate it if you would provide our office with a letter outlining your professional opinion. It could address how long you have been treating Ms James, if you have been treating her for any condition that impacts upon her mental faculties (or know of anyone who has done so) and your opinion as to whether she currently has the capacity to make decisions on her own behalf. 27 Dr Do-Nguyen assessed the deceased on 13 November 2017 and prepared a report on the same day. Dr Do-Nguyen also telephoned the plaintiff that day to inform him that he had just seen the deceased and would prepare his report and send it to the deceased. 28 Unfortunately, the deceased does not appear to have received that report as intended. It may be that Dr Do-Nguyen's report was only sent to the deceased's general practitioner. In any event, Cullen Macleod followed up with Dr Do-Nguyen on 3 April 2018 and the plaintiff received his report by email the following day. 29 Dr Do-Nguyen's report is dated 13 November 2017 and relevantly states: Past Medical History 1. Alzeihmers [sic] dementia 1.1 Diagnosis 2014 by Dr Criddle 1.2 On Donepezil 5mg 1.3 MMSE June 2014 23/30 1.4 MMSE May 2016 23/30 1.5 MMSE November 2017 of 24/30. … I last reviewed Mrs Gail James in the Hollywood Specialist Centre on the 18th of May 2016. At that stage, she had well established -- 8 of 15 -- [2026] WASC 194 BYDDER J Page 9 Alzheimer's dementia (previously seen by Dr Arthur Criddle) with an MMSE of 23/30. She was re-reviewed today in the company of her three sisters. In the interim, the patient herself reports being well with no physical or cognitive issues. She had an admission in St John of God Midland under Dr Ung for syncope and had a loop recorder inserted with follow up due in the coming month. She denies any further syncopal episodes and reports feeling well. Collateral history from her three sisters reported gradual decline in short-term memory loss especially forgetting recent conversations. There have been no concerns with regard to dangerous scenarios such as forgetting to turnoff [sic] appliances. There were no reports of any behavioural or psychiatric symptoms of dementia. At present, she continues to live on her farm property and works with her neighbours on the adjacent properties. She remains independent with personal activities of daily living but receives assistance from her friends and neighbours as well as sisters for domestic activities of daily living. She currently ambulates without any gait aids and denies a history of recent falls. She no longer drives. On examination, she was alert and oriented with no evidence of hygiene neglect. Her mood was bright and reactive. Her MMSE was today 24/30 which is stable compared to May 2016. She scored 0/3 on recall and also lost points in orientation. I have again assessed her capacity with regard to enduring power of guardianship (EPG). She had a good understanding and comprehension on what EPG entailed and had a good idea of who she would appoint. She was able to rationalise the potential pros and cons of appointing someone as an EPG. I also assessed capacity in relation to her will and estate. She was able to understand the nature of drawing up a will and estate as well as potential implications. She was able to appropriately discuss the extent of her assets and was able to explain the potential advantages and disadvantages and rationalised her thoughts with regard to a will. As such, I am happy that on today's assessment, Gail has the capacity to appoint an EPG as well as having the capacity to draw-up a will and estate. In summary, Gail James is a 72-year-old female with stable Alzheimer's dementia. Although she lacks insight, she retains a relatively preserved functional status with the assistance of her family and friends. I have not made any changes to her current medications. I am happy that she has capacity to appoint EPG (which I have encouraged) as well as writing up a will. An enduring power of attorney (EPA) in [sic] already in place. At present, her next of kin is Joanna Coburn [sic] Walsh (sister) who will be the main point of contact in relation to medical issues. I understand a referral for ACAT has also been -- 9 of 15 -- [2026] WASC 194 BYDDER J Page 10 commenced for future planning. I will arrange follow up in 12 months, but would be happy to see her earlier if indicated. 30 After receiving Dr Do-Nguyen's report, the plaintiff met with the deceased again at Cullen Macleod's offices on 11 April 2018 together with a junior solicitor from that firm. At the meeting, the plaintiff discussed and confirmed with the deceased her instructions for her new will and took instructions on preparing a new enduring power of attorney and a new enduring power of guardianship. 31 On 9 May 2018, the deceased met again with the plaintiff at Cullen Macleod's offices. The deceased was accompanied by her accountant. 32 On the same day, the deceased executed the 2018 Will in the presence of Ms Williams and Alice Tangney. Ms Williams and Ms Tangney subscribed the 2018 Will in the presence of the deceased and each other. At that time, Ms Williams was a legal practitioner and Ms Tangney was a paralegal employed by Cullen Macleod. 33 The 2018 Will relevantly: (a) revoked all previous wills; (b) appointed the plaintiff as her executor; (c) gifted the Farm to the fourth defendants as tenants in common in equal shares 'in recognition of their assistance to me since 1987' or, if at her death the deceased no longer owned the Farm, gifted $500,000 to the fourth defendants absolutely; (d) recorded that the deceased had loaned a sum of money to the first defendant and provided that if the first defendant had not fully repaid the loan by the time of the deceased's death, each of the second and third defendants should receive a gift equal to the amount of the loan remaining unpaid 'for the purposes of equalising the monetary gifts received by each of my sisters'; (e) made provision in respect of the rest of her estate (i) for payment of her funeral and testamentary expenses and probate and other duties related to her estate; and (ii) for whatever was left of the estate to be divided equally between the first, second and third defendants; and -- 10 of 15 -- [2026] WASC 194 BYDDER J Page 11 (f) included a 'will maker's explanation' that the deceased had purposefully gifted the Farm to her friends the fourth defendants 'in recognition of our friendship and the assistance they have provided me since 1987'. 34 The deceased did not make any other Will after the 2018 Will. The counterclaims 35 I have referred above to the defendants' respective counterclaims and to their dismissal by consent. 36 Although they have been dismissed and this matter is being tried on an undefended basis, it is appropriate that I note the first, second and third defendant's allegations in their counterclaim going to the deceased's capacity to make the 2018 Will. Those allegations were that: (a) the deceased experienced rapid cognitive decline, in the sense that her results from mini-mental state examinations (MMSEs) decreased between 22 August 2016 (when her score was 20/30), 13 November 2017 (when her score was 24/30 with 0/3 in recall) and 2 February 2019 (when her score was 14/30); (b) on 23 February 2018, the deceased received a dual-chamber pacemaker from Professor Rukshen Weerasooriya, who did not believe that the deceased had sufficient capacity to understand the procedure she was to receive; and (c) on or about 2 February 2019 while at St John of God Midland, the deceased was not oriented to time and was unable to repeat sentences or copy diagrams and underwent a MMSE administered by Dr Kalindu Muthucumarana, in which the deceased achieved a score of 14/30. The plaintiff's claim 37 The plaintiff seeks to prove the 2018 Will in solemn form. 38 It is appropriate that the grant of probate be sought in solemn form given that the validity of the 2018 Will is contested, even in the context of a compromise under which the defendants have consented to the dismissal of their counterclaims.2 2 Wheatley & Anor v Edgar & Ors [2003] WASC 118 (Wheatley) [17], [28] - [29] (E M Heenan J). -- 11 of 15 -- [2026] WASC 194 BYDDER J Page 12 39 E M Heenan J explained what is required for a grant in solemn form in Wheatley [24] (with citations omitted): [F]or there to be a grant in solemn form the court must be satisfied on evidence adduced by the party propounding the will, or by any other party to that suit, whether joined or cited, of the formal validity of the will, on such evidence as the propounder decides to adduce that the testator had the capacity to make a will at that time... In this regard the propounder may take advantage of the rule that a will, properly executed is, in the absence of evidence to the contrary, presumed to have been made by a person competent and understanding. If there is evidence to the contrary it is for the propounder to establish affirmatively that the testator was of sound mind... Nevertheless, there must be proof at least to this extent on the civil standard to justify a grant in solemn form. 40 His Honour went on to observe [26]: [W]hen a compromise is reached between the parties to a contested action for proof in solemn form, it is open to the court to decree in favour of the will either in common form or in solemn form but, for solemn form to be decreed sufficient evidence to satisfy the minimum requirements for validity must be adduced and that this will require, at least, proof of due execution. 41 It is therefore necessary to begin by considering whether the 2018 Will was properly executed. Was the 2018 Will properly executed? 42 Section 8 of the Wills Act 1970 (WA) provides3 that a will is not valid unless: (a) it is in writing; and (b) it is signed by the testator or signed in the testator's name by some other person in the testator's presence and by the testator's direction, in such place on the will so that it is apparent on the face of the will that the testator intended to give effect by the signature to the writing signed as the testator's will; and (c) the testator makes or acknowledges the signature in the presence of at least 2 witnesses present at the same time; and (d) the witnesses attest and subscribe the will in the presence of the testator but no publication or form of attestation is necessary. 3 The provisions of section 8 are subject to other Wills Act provisions that are irrelevant to this case. -- 12 of 15 -- [2026] WASC 194 BYDDER J Page 13 43 The 2018 Will appears on its face to comply with each of these requirements. However, in the ordinary course, evidence of one of the attesting witnesses to the 2018 Will should be adduced to prove due execution of the 2018 Will.4 That evidence has been adduced by way of the Williams affidavit. 44 On the basis of the 2018 Will and the Williams affidavit, I am satisfied that the 2018 Will was properly executed. Did the deceased have testamentary capacity to make the 2018 Will? 45 The plaintiff can only take advantage of the presumption that the deceased had testamentary capacity to make the 2018 Will in the absence of evidence to the contrary. 46 While no party now suggests that the deceased lacked testamentary capacity when she made the 2018 Will and the plaintiff's claim is now unopposed, I must be independently satisfied on the evidence that the 2018 Will is the deceased's last will.5 For that reason, I have considered whether there is any evidence which contradicts the presumption that the deceased had testamentary capacity when she made the 2018 Will. 47 As I have found, the 2018 Will was prepared by the plaintiff who is (and at that time was) a very experienced legal practitioner specialising in will and estate planning, deceased estates, trusts and general commercial law. It is clear from the evidence that the plaintiff took care to satisfy himself of the deceased's testamentary capacity and took the added precaution of obtaining the opinion of a consultant physician and geriatrician on her testamentary capacity. The plaintiff was also careful to ensure that in seeking Dr Do-Nguyen's opinion, he drew the doctor's attention to the relevant legal test for testamentary capacity.6 48 Ms Williams, who was one of the attesting witnesses to the 2018 Will, is also an experienced legal practitioner and had been in practice for a decade at the time the 2018 Will was made. Ms Williams also took care to satisfy herself that the deceased had capacity to make the 2018 Will. 4 Vandeleur v French [1991] 1 Qd R 481, 484 - 485 (Macrossan CJ), cited in Wheatley [25] (and see also [30]). 5 Mott v Hill [2021] WASC 43 [45]. 6 For a recent discussion of the principles going to testamentary capacity and Banks v Goodfellow (1870) LR 5 QB 549, see Pettit v Waters-Pettit [2026] WASC 25 [52] - [61] (Lundberg J). -- 13 of 15 -- [2026] WASC 194 BYDDER J Page 14 49 There is nothing in the terms of the 2018 Will which casts doubt on the deceased's testamentary capacity. The 2018 Will is consistent with what the deceased told the plaintiff about the issues between the deceased and the first, second and third defendants, as well as about her friendship with and support by the fourth defendants. The 2018 Will is also broadly consistent with the gifts in the 2002 Will. 50 The fact that the parties have consented by way of settlement to how the deceased's estate should be administered is also a relevant consideration for the court to weigh in the overall balance of considerations.7 51 No evidence has been led to support the allegations made in the first, second and third defendant's counterclaim, save for the MMSE scores recorded by Dr Do-Nguyen in his report. Even assuming that those allegations are correct, they do not cause me to doubt the assessments made by the plaintiff and Dr Do-Nguyen of the deceased's capacity to make the 2018 Will. 52 That a person does not have capacity to understand or make decisions in respect of one matter does not mean that the person lacks capacity to understand or make decisions in respect of all matters. Even if the deceased was unable to understand or make a decision about receiving a dual-chamber pacemaker, it does not follow that she was unable to understand and make decisions about the distribution of her estate. 53 Further, the MMSE results before the deceased made the 2018 Will are fairly stable and the MMSE result alleged in 2019 was nearly nine months after the deceased made the 2018 Will. 54 In all the circumstances, I am satisfied that the deceased had testamentary capacity to make the 2018 Will. Disposition 55 For these reasons, I make the following orders: 1. It is pronounced that the will and testament of the late Gail Cockburn James dated 9 May 2018 is valid and has force and effect in solemn form of law as the last will of the late Gail Cockburn James. 7 Fairclough v Cvitan [2019] WASC 370 [26] (Kenneth Martin J). -- 14 of 15 -- [2026] WASC 194 BYDDER J Page 15 2. A Registrar is to settle a grant of Probate of the will dated 9 May 2018 in solemn form to the plaintiff, Hugh Stephen Cahill. 3. The plaintiff is entitled to an indemnity out of the estate in respect of all costs incurred by him of or incidental to Supreme Court Action CIV 1996 of 2024 (including the costs of any taxation). 4. The costs in order 3 are to be taxed (if not agreed) on the basis that the plaintiff is entitled to all of the costs claimed, except in so far as they have been unreasonably incurred or are of an unreasonable amount, so that subject to those exceptions the plaintiff is completely indemnified for his costs. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. JS Associate to the Hon Justice Bydder 19 MAY 2026 -- 15 of 15 --