Wheatley & Anor v Edgar & Ors

[2003] WASC 118

Supreme Court of Western Australia

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Interrogate

Catchwords

1. Probate and Administration
2. › Proof of will
3. › Solemn form proceedings
4. › Compromise of contested proceedings
5. › Whether grant of probate can be made on consent without evidence
6. › Procedure to be followed on discontinuance
7. › Rules of the Supreme Court, O 73 rr 18, 19
1. Probate and Administration
2. › Proof of will
3. › Common form and solemn form distinguished
4. › Requirements for grant in solemn form
5. › Proof of due execution
6. › Presumption of testamentary capacity
1. Practice and Procedure
2. › Compromise
3. › Person under disability
4. › Approval of compromise affecting minor
5. › Whether independent counsel's opinion required
6. › Rules of the Supreme Court, O 70 r 10(2)
1. Trusts
2. › Appointment of additional trustee
3. › Whether appointment can be made in probate proceedings before grant
4. › Trustees Act 1962 (WA), s 77

Quick Take

Where contested probate proceedings for proof in solemn form are compromised, the court cannot grant probate merely on the consent of the parties. If doubts about testamentary capacity remain on the court file (such as adverse medical evidence), a common form grant is precluded and the action must be set down for a short trial under O 73 r 19 at which the propounder must adduce at least evidence of due execution and raise a presumption of testamentary capacity. Matters of trust administration arising under the will should not be dealt with in the probate proceedings but in separate proceedings after the grant.