An Analysis of AC [No 2] [2026] WASAT 30
1. Introduction
AC [No 2] [2026] WASAT 30 is a short but significant decision of the State Administrative Tribunal of Western Australia on the use that may be made of a Tribunal guardianship file after the represented person has died. Member Child refused two applications under s 112(4) of the GA Act for access to material held on the Tribunal's file: one brought on behalf of the represented person's son to support a proposed Supreme Court challenge to the represented person's will, and another brought by the represented person's daughter who said she had not been properly informed about the earlier proceedings.
The decision is of particular interest to practitioners in estates litigation, guardianship and administration, and elder law. In short, it confirms that a SAT guardianship file is not a discovery device for will challenges. The decision draws a clear line between applications that serve the interests of the represented person — which may attract access (as in OR [2024] WASAT 2 (S)) — and applications that are, in substance, directed to the interests of others. The latter remain subject to the strict confidentiality regime in s 112 and s 113 of the GA Act, and an applicant must show very cogent reasons for access.
The practical consequence is that estate practitioners contemplating a challenge under the Administration Act 1903 (WA), a family provision claim, or a capacity-based probate dispute cannot assume that evidence assembled by the Tribunal — medical reports, capacity assessments, transcripts and affidavits — will be made available to them following the death of the represented person. The decision is a timely reminder that the confidentiality protections in the GA Act survive death.
2. Relevant Legal Framework
Section 112 and s 113 of the GA Act
Section 112 of the GA Act establishes three distinct classes of access to Tribunal documents. First, under s 112(1), the proposed represented person (or represented person) has a conditional entitlement to inspect material lodged with or held by the Tribunal for the purposes of any application in respect of that person. Second, under s 112(2), any other party to proceedings commenced under the GA Act has a conditional entitlement to inspect documents (other than medical opinions not concerning that party) for the purpose of those proceedings. Third, under s 112(4), the Tribunal may, on the application of any person, authorise access to documents or materials, conditionally or unconditionally.
Section 113 imposes a parallel confidentiality obligation on persons performing functions under the GA Act, prohibiting the divulging of personal information relating to a represented person or proposed represented person except in prescribed circumstances. Section 112(3) backs the regime with criminal sanctions: unauthorised inspection attracts a penalty of $2,000 or imprisonment for nine months.
The cogent reasons threshold
The leading authority is CD [2020] WASAT 41 (CD), in which the then President of the Tribunal articulated the test for applications under s 112(4). Where an applicant seeks access for purposes unrelated to proceedings before the Tribunal, the applicant must provide very cogent reasons and demonstrate a particular need (see CD at [43]). A general desire to be informed is not sufficient, nor are convenience or cost savings. Those principles had earlier been stated in MM (2001) 28 SR (WA) 320 and AB and the Public Trustee [2015] WASAT 68.
The rationale reflects two public interests. The first is the privacy of the represented person. The second is the integrity of the Tribunal's processes: the exercise of the Tribunal's jurisdiction depends upon candid evidence from medical practitioners, service providers and family members. If those sources believed their material might routinely be released for use in collateral civil litigation, the frankness and supply of evidence would be compromised (see CD at [36]–[37]).
Where access has been granted: OR
In OR [2024] WASAT 2 (S) the Tribunal granted the represented person access to transcripts of hearings in Tribunal proceedings concerning him. Access was granted because it was in OR's own best interests and relevant to closely related Family Court property settlement proceedings between OR and his former wife, who had acted under OR's enduring power of attorney. The critical feature was that the access served the represented person's interests, not the interests of a third party seeking to litigate against him or his estate.
The post-death boundary
The objects of the GA Act are directed to the personal and financial affairs of adults who need assistance during their lifetime. In Re the Full Board of the Guardianship and Administration Board [2003] WASCA 268 at [57], Heenan J held that the conservation of an estate under administration during the represented person's lifetime does not extend to the preservation of the estate after death; this is reflected in s 78(1)(b), under which the administrator's authority ceases on death. The legislation is not concerned with will-making or the administration of deceased estates. AC [No 2] applies that orientation to the access regime: the Tribunal's file is not to be repurposed to serve the probate jurisdiction.
3. The Facts of the Case
AC was an 86-year-old businessman with a diagnosis of dementia at the time of the earlier Tribunal proceedings (at [1]). In those earlier proceedings, the partner of AC sought appointment as guardian and administrator of AC's estate, while AC's son, RC, sought orders bringing into force an enduring power of attorney made by AC which appointed RC as attorney (at [2]).
Orders were made appointing guardians and an administrator, and bringing into force and then varying the EPA. Those proceedings concluded in 2024 (at [3]). Oral reasons were delivered on the day of the final hearing and were only recently published following the present access applications (at [4]). AC died on 23 December 2025 (at [5]).
RC's application
On 5 January 2026, and through his solicitors, RC applied under s 112(4) for access to documents held on the Tribunal's file, including medical and other material. The purpose stated was to obtain advice about commencing proceedings in the Supreme Court under the Administration Act 1903 (WA). The concerns articulated related to AC's alleged lack of testamentary capacity, lack of knowledge and approval, and undue influence in respect of a will made by AC after RC believed AC had lost mental capacity (at [8]).
MR's application
On 21 January 2026, AC's daughter MR applied for all information on the Tribunal's file. MR asserted that she had not received any letters about AC's matters and believed she had not been properly informed. She said her brother RC had told her she would be advised in due course, and that although Tribunal staff had told her five letters had been sent to her, she had received none and it was unlikely all had gone missing (at [9], [19]–[20]).
The Tribunal noted that three notices had been sent by mail to MR at her confirmed home address — a notice of the original hearing, and subsequent orders. MR did not attend the original or subsequent hearings. It was apparent from her application that she had been aware of the proceedings through RC. It had been indicated in the earlier proceedings that MR was estranged from AC; whether accurate or not, MR had not sought access during AC's lifetime (at [20]–[21]).
4. Analysis of the Tribunal's Reasoning
MR's application: a general desire to be informed
Member Child characterised MR's application as being in the nature of a general desire to be informed, applying MM (as followed in CD). The timing weighed against the applicant: MR had not sought information during AC's lifetime, when the GA Act processes were on foot and capable of responding to a genuine informational interest in a represented person's welfare. The Tribunal was not satisfied that MR had demonstrated cogent reasons for access and dismissed the application (at [21]).
RC's application: interests of others, not the represented person
The reasoning on RC's application is the heart of the decision. Member Child accepted that material on a Tribunal file may sometimes be relevant to matters outside the stated purposes of the GA Act, including testamentary capacity (at [23], [26]). The tests for capacity differ: the test for capacity to execute a will is the Banks v Goodfellow test of sound mind, memory and understanding ((1870) LR 5 QB 549 at 565), whereas appointment of an administrator under s 64 of the GA Act requires a finding that the person is unable by reason of a mental disability to make reasonable judgements about his or her estate (at [26] and footnotes 9 and 10). There may therefore be overlap in the evidentiary subject matter, without identity of the legal tests.
The Tribunal nevertheless refused access. The critical distinction drawn from OR is that, in OR, access advanced the represented person's interests in closely related proceedings; here, access was sought not to advance AC's interests (AC having died), but the interests of RC as a potential will-challenger (at [27]).
Member Child then applied the CD rationale directly (at [28]–[31]). Granting access to the documents for RC's stated purpose would not uphold the public interest in maintaining the integrity of the Tribunal's processes. Medical practitioners and other professionals produce reports on the footing that those reports will be used for the Tribunal's statutory function. The candour of evidence from proposed represented persons, applicants and family members relies on a reasonable expectation that the information given will be used only in GA Act proceedings (at [31], citing PJB [2008] WASAT 190 at [46], which was in turn cited in OR). If it became known that GA Act material would be routinely released to support post-death will challenges, those sources may be hesitant to provide material, or less frank in doing so.
Death does not dissolve confidentiality
A further plank of the reasoning — picked up from AB and the Public Trustee at [14] — is that personal information does not cease to be confidential simply because the person has died. The result is that the s 113 confidentiality regime, and by extension the s 112 access controls, survive the represented person's death. The fact that the represented person can no longer consent does not convert the file into something more accessible; if anything, it heightens the protection because the person whose interests are at stake can no longer speak for herself or himself.
5. Assessing the Consequences
The practical consequences of AC [No 2] for estates practitioners are significant. Will-challengers frequently look to guardianship proceedings as a ready-made evidentiary foundation. The Tribunal's file may contain capacity assessments by treating geriatricians, neuropsychological reports, affidavit evidence from family members, and transcripts of hearings at which the represented person's cognition was directly canvassed. That material is often more contemporaneous with the impugned testamentary act than any report a litigant could now procure.
After AC [No 2], practitioners must treat a Tribunal file as presumptively inaccessible for the purposes of will challenges or family provision claims. Access will be granted only on very cogent reasons, and the stated purpose of advancing a will challenge will ordinarily tell against access because it is directed to the interests of the applicant rather than the represented person.
The cost and time consequences for clients are real. Evidence of capacity at or around the time of a will may instead need to be reconstructed from medical records obtained by subpoena in the Supreme Court, interviews with treating clinicians, and expert retrospective reports — an undertaking substantially more expensive than copying the Tribunal file. Practitioners should factor this into scope, estimates and costs disclosure at the outset of any file where the testator was the subject of GA Act proceedings.
For the Tribunal system, the decision reinforces the integrity of its evidentiary environment. Medical and allied-health professionals can continue to provide candid reports to the Tribunal on the footing that their reports will not be routinely turned over to estate litigation. That protection is not absolute — s 112(4) remains a discretionary gateway — but the threshold is high and the cases in which it is cleared will be unusual.
6. Worked Example
Assume the following facts. E is an 84-year-old widower with a diagnosis of vascular dementia. In 2023, E's daughter D (with whom E lived) was appointed E's administrator by the Tribunal following a contested hearing at which E's son S opposed the application and asserted E retained capacity. In the course of those proceedings, the Tribunal received two geriatrician's reports, an occupational therapist's capacity assessment, and affidavits from each of D and S. In 2024, E executed a new will naming D as sole beneficiary. E died in 2026. S wishes to challenge the will, asserting lack of testamentary capacity and undue influence by D.
S's application for access under s 112(4)
S, as a former party to the GA Act proceedings, no longer has any entitlement under s 112(2) following final determination (see CD at [40]). S must apply under s 112(4). Following AC [No 2], the stated purpose — to challenge the will — places the application on the wrong side of the OR/AC [No 2] line: the access is directed to S's own interests, not those of E. The application would likely be refused, absent additional material such as evidence of fraud or of something seriously amiss in the underlying GA Act proceedings.
D's position
D, as propounder of the will, will resist access. D can point to AC [No 2] and CD and submit that the policy of the GA Act is to protect the evidentiary environment of the Tribunal. D might add that, even if access were granted, the distinct legal test (Banks v Goodfellow vs s 64 of the GA Act) means that GA Act material has only limited probative weight in a probate action in any event.
Could the position change?
Access may be more realistically available where, for example, S could identify a specific document (rather than the whole file), show that it could not be obtained from any alternative source (for example, the author of a medical report), and articulate the particular need for it in the proposed probate action. Even then, the Tribunal will weigh the cogency of the reasons against the confidentiality concerns (see CD at [45]).
7. Practitioner Guidance: A Step-by-Step Framework
Step 1 — Identify the purpose and the beneficiary of access
Before drafting any s 112(4) application, articulate in a single sentence whose interests the access serves. If the answer is the represented person (for example, to pursue a claim that benefits the represented person's estate during life, as in OR), access is realistic. If the answer is the applicant or a beneficiary seeking to litigate against the estate, the application will face the AC [No 2] headwind.
Step 2 — Audit available alternative sources
Catalogue every alternative source: treating doctors' clinical notes, hospital records, aged care facility notes, family observations, bank records, solicitor's file notes on the will instructions. The Tribunal will give weight to whether access is necessary, not merely convenient (see CD at [43]).
Step 3 — Scope the request narrowly
Avoid a blanket request for the whole file. Specify the documents sought (for example, a particular capacity report dated X by Y) and explain why each is needed. Narrow, reasoned requests are more likely to be granted than sweeping fishing expeditions (see AC [No 2] at [23]–[27]).
Step 4 — Articulate very cogent reasons
Translate the CD threshold into evidence. Address: (a) the relevance of each specific document to the proposed proceedings; (b) the impossibility or unreasonable cost of obtaining the evidence by any other means; (c) any undertaking to use the material only for identified purposes and to limit circulation; and (d) any features of the case that distinguish it from an ordinary will challenge.
Step 5 — Consider the public interest factors
Confront the CD public interest factors directly. Explain why granting access will not chill the supply of evidence in future GA Act cases. For example, identify whether the relevant report author has already consented, or whether the material has already entered the public domain in some form (at [28]–[31]).
Step 6 — Address confidentiality safeguards
Offer practical safeguards: limitation to identified solicitors, confidentiality undertakings, return or destruction at the end of the litigation, and restrictions on further disclosure. These mitigate the s 113 concerns (AB and the Public Trustee at [14]) and help address the weight against access.
Step 7 — Manage client expectations and costs
Advise the client at the outset that the Tribunal file is presumptively unavailable, that an application is likely to be refused if its purpose is a will challenge, and that the probate proceedings will generally need to be resourced on the footing that a fresh evidentiary record must be built. Build costs estimates accordingly and provide costs disclosure reflecting that scope.
Step 8 — Consider timing
If a GA Act file exists and the represented person is still alive, consider whether any access that may benefit the represented person (for example, to pursue claims for the represented person's benefit) should be sought before death. Post-death, the AC [No 2] bar operates, and the window for OR-type applications largely closes.
8. Evidence and Arguments Available to Each Side
Applicant seeking access
An applicant will seek to characterise access as serving the represented person's interests (for example, by reference to a claim that preserves or restores the estate for rightful beneficiaries). The applicant should be prepared to tender: (a) affidavit evidence of the proposed proceedings, the parties and the issues; (b) evidence of unsuccessful attempts to obtain the material from alternative sources; (c) a targeted list of the specific documents sought with a stated purpose for each; and (d) proposed confidentiality undertakings and orders limiting use.
Useful authorities include OR (where access served the represented person's interests in closely related proceedings) and s 112(4)'s broad, unlimited discretionary language recognised in CD at [42].
Party resisting access
AC [No 2] and CD together provide the skeleton of the resistance. The respondent should emphasise: (a) the confidentiality policy in s 112 and s 113; (b) the post-death persistence of confidentiality (AB and the Public Trustee); (c) the OR/AC [No 2] distinction that access must serve the represented person's interests; (d) the chilling effect on the Tribunal's evidentiary environment (CD at [36]–[37]; PJB at [46]); and (e) the availability of alternative evidentiary sources in the probate jurisdiction.
Respondents should also draw attention to the distinct legal tests: because GA Act findings are made on a different capacity standard from the Banks v Goodfellow test, the material is of limited weight in a probate action in any event, which is a further reason against taking the step of releasing it.
9. Key Takeaways for Legal Practice
1. A SAT guardianship file is not a discovery tool for will challenges.
The central message of AC [No 2] is that access under s 112(4) will not be granted where the stated purpose is to support a will challenge or similar claim directed to the interests of third parties (at [27]–[32]).
2. The CD threshold — very cogent reasons — remains intact.
A general desire to be informed is insufficient. So are convenience and cost savings. The applicant must demonstrate a particular need (CD at [43]–[44]).
3. Confidentiality survives death.
Personal information held on the Tribunal's file does not become releasable merely because the represented person has died (AB and the Public Trustee at [14]).
4. OR is a narrow authority.
The grant of access in OR reflected closely related proceedings in which access served the represented person. It does not provide a template for post-death will-challenge applications.
5. Different tests mean limited probative value.
Administration and testamentary capacity are assessed under different tests (Banks v Goodfellow and s 64 of the GA Act respectively). GA Act findings are not determinative of testamentary capacity, a point respondents can deploy against access.
6. Narrow, reasoned requests fare better than blanket requests.
Identify specific documents, their relevance, and the impossibility of obtaining them elsewhere. Offer confidentiality safeguards.
7. Build cost estimates on the assumption that access will be refused.
Where the testator was the subject of GA Act proceedings, practitioners advising a will-challenger should assume a fresh evidentiary record will need to be built and scope costs accordingly.
8. Timing matters.
Consider any possible OR-type access during the represented person's lifetime, where the access may serve the represented person's interests in related proceedings.
9. The integrity of the Tribunal's evidentiary environment is a substantive public interest.
The decision protects the willingness of clinicians, family members and represented persons to provide candid evidence, which has systemic benefits well beyond the individual case.
10. Document all alternative evidentiary avenues.
Subpoenas to treating clinicians, aged care records, the solicitor's will-taking file notes and contemporaneous bank records will usually need to carry the evidentiary burden in a capacity challenge.
10. Conclusion
AC [No 2] is a measured and principled restatement of the Tribunal's confidentiality regime applied to the post-death context. The decision is not a change in the law so much as a clear application of CD and AB and the Public Trustee to the common scenario of a will challenge following GA Act proceedings. Its significance for practitioners is practical: estate practitioners cannot rely on Tribunal material to carry the evidentiary weight of a testamentary capacity challenge; guardianship practitioners can reassure medical and other professionals that the integrity of the evidentiary environment will be protected after, as well as during, the represented person's lifetime.
The decision leaves room for unusual cases. Section 112(4) is a broad discretion, and access may be granted where it serves the represented person or where very cogent reasons are made out. But the default position, confirmed in AC [No 2], is firmly on the side of confidentiality. For those advising clients in estates litigation, that default position must now inform scope, strategy and costs from the outset.