CHRISTOPHER JOHN PATERSON AS EXECUTOR OF THE ESTATE OF HELEN GEORGINA BATY -v- SARAH LOUISE MORRIS AS EXECUTOR OF THE ESTATE OF HELEN GEORGINA BATY [2026] WASC 231

[2026] WASC 231 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : CHRISTOPHER JOHN PATERSON AS EXECUTOR OF THE ESTATE OF HELEN GEORGINA BATY - v- SARAH LOUISE MORRIS AS EXECUTOR OF THE ESTATE OF HELEN GEORGINA BATY [2026] WASC 231 CORAM : GETHING J HEARD : ON THE PAPERS DELIVERED : 9 JUNE 2026 FILE NO/S : CIV 1604 of 2024 BETWEEN : CHRISTOPHER JOHN PATERSON AS EXECUTOR OF THE ESTATE OF HELEN GEORGINA BATY Plaintiff AND SARAH LOUISE MORRIS AS EXECUTOR OF THE ESTATE OF HELEN GEORGINA BATY First Defendant CLAIRE NICOLE MORRIS KATHERINE MARY MORRIS CHRISTOPHER JOHN PATERSON AMANDA JAYNE THOMSON Second Defendants SARAH LOUISE MORRIS Third Defendant SARAH LOUISE MORRIS Plaintiff by counterclaim CHRISTOPHER JOHN PATERSON -- 1 of 9 -- [2026] WASC 231 Page 2 Defendant by counterclaim Catchwords: Wills - Probate - Compromise - Application for proof in solemn form of the will of the deceased Legislation: Rules of the Supreme Court 1971 (WA) O 73 r 19 Result: Application granted Category: B Representation: Counsel: Plaintiff : No appearance First Defendant : No appearance Second Defendants : No appearance Third Defendant : No appearance Plaintiff by counterclaim : No appearance Defendant by counterclaim : No appearance Solicitors: Plaintiff : Solomon Hollett Lawyers First Defendant : In Person Second Defendants : Biddulph & Turley (South Perth) & In Person & Solomon Hollett Lawyers Third Defendant : In Person Plaintiff by counterclaim : In Person Defendant by counterclaim : In Person -- 2 of 9 -- [2026] WASC 231 Page 3 Case(s) referred to in decision(s): Allen v Quinn [2025] WASC 2 Cahill v Morgan [2026] WASC 194 Fairclough v Cvitan [2019] WASC 370 Fisher v Kay [2010] WASCA 160 Hughes v Grierson [2026] WASC 56 Littlefair v Bernhard [2026] WASC 136 Wheatley v Edgar [2003] WASC 118 -- 3 of 9 -- [2026] WASC 231 GETHING J Page 4 GETHING J: 1 Helen Georgina Baty died on 22 June 2023 at the age of 59 (Helen).1 She executed a will dated 6 October 2022 (Will). Under the Will, Christopher Paterson (Christopher) and Sarah Morris (Sarah) were appointed as joint executors. Christopher was a friend of the Deceased. Sarah was the sister of the Deceased. 2 In or about 2023, Sarah filed a probate caveat in the Probate Registry of the Supreme Court of Western Australia (Court) on the basis that Helen lacked the capacity to execute the Will. 3 By a Writ of Summons filed on 22 May 2024, Christopher, in his capacity as one of the executors named in the Will, sought a grant in solemn form of the Will to be made in his sole name (Action). Sarah is named as the first defendant (in her capacity as executor) and the third defendant personally. 4 The active parties to these proceedings attended a mediation on 4 November 2025 at the Court and reached a resolution. A Deed of Settlement and Release dated 17 March 2026 (Deed) was later executed by the active parties and other interested parties, recording the agreement reached at mediation. Part of the agreement was that Sarah agreed to probate in solemn form of Helen's Will being granted to her and Christopher as joint executors. 5 The parties also filed consent orders on 18 March 2026 which were made on 19 March 2026. The orders made were: 1. The first defendant's counterclaim filed on 5 February 2025 in this action be discontinued and upon these orders being made the counterclaim is hereby discontinued. 2. The first defendant's defence filed on 8 November 2024 and amended defence filed on 5 February 2025 be withdrawn and upon these orders being made the defence and amended defence is hereby withdrawn. 3. The 4 witness outlines filed on 21 May 2025 by the first defendant be withdrawn, upon these orders being made the first defendant's witness outlines are hereby withdrawn. 4. The plaintiff to file and serve an amended statement of claim within 14 days of these orders. 1 As many of the parties share the same surname, for ease of reference I will refer to each of them by their first name. I intend no disrespect in doing so. -- 4 of 9 -- [2026] WASC 231 GETHING J Page 5 5. The plaintiff have leave to enter this action for trial on an uncontested basis pursuant to Order 73, r19 of the Rules of the Supreme Court 1971 (WA). 6. The trial be listed on the basis the plaintiff's amended statement of claim is undefended. 7. The plaintiff to file affidavits and submissions in support of the relief sought in the amended statement of claim, within 28 days of the matter being entered for trial. 8. The amended statement of claim be determined on the papers, unless otherwise ordered by a Judge. 9. If a Judge requires the trial to be conducted with the plaintiff in attendance, the estimated trial duration is half a day. 10. The plaintiff and first defendant have liberty to apply. 11. There be no order as to costs. 12. The case management conference listed 19 March 2026 be vacated and relisted on Thursday, 7 May 2026 at not before 10am. 6 In compliance with these orders Christopher filed: (a) an Amended Statement of Claim (ASOC); (b) an affidavit sworn by him on 12 May 2026 (Christopher’s Affidavit);2 (c) an affidavit sworn by Hugh Cahil, one of the witnesses to the Will (Cahill Affidavit); and (d) submissions. 7 The trial was allocated to me. I am satisfied that it is appropriate to determine the trial on the papers on an undefended basis. 8 For the reasons which follow, orders should be made for a grant in solemn form of Helen’s Will. Principles 9 The probate of a will may be granted in common form or in solemn form. There is a significant difference between the two. 2 I note that the time for compliance by the plaintiff with order 7 was extended to 13 May 2026 by way of further consent orders made on 11 May 2026. -- 5 of 9 -- [2026] WASC 231 GETHING J Page 6 A grant of probate in common form is revocable whereas the circumstances in which a grant in solemn form may be revoked are limited.3 An executor has an absolute right to seek proof in solemn form, but the court has a discretion to grant or refuse the application.4 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 favour of the will either in common form or in solemn form.5 Where the adequacy of the testator’s capacity is in issue, even where there is a compromise, the appropriate course is set the action down for trial pursuant to Rules of the Supreme Court 1971 (WA) O 73 r 19 to consider whether the will should be proven in solemn form. That is what has occurred in the present case. 10 The requirements for a will to be proven in solemn form are well established and may be summarised for present purposes as follows:6 (a) sufficient evidence must be adduced to satisfy the minimum requirements for validity; (b) this will firstly require proof of due execution of the will; (c) relevantly to this case, 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, which attestation needs to occur in the deceased's presence; (d) a presumption of due execution arises where a will, in writing and regular on its face, bears the signature of a testator and two witnesses; (e) 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, these requirements being described by the summary terms, testamentary capacity, knowledge and approval and testamentary intention; 3 Wheatley v Edgar [2003] WASC 118 [18] (E M Heenan J) (Wheatley). 4 Wheatley [19]. 5 Wheatley [26]. 6 Wills Act 1970 (WA) s 8; Fisher v Kay [2010] WASCA 160 [82], [83], [85] (Owen JA, with whom Buss and Murphy JJA agreed); Hughes v Grierson [2026] WASC 56 [42] - [43] (Bydder J); Littlefair v Bernhard [2026] WASC 136 [17] (Solomon J); Allen v Quinn [2025] WASC 2 [15] - [25] (Lemonis J); Wheatley [24], [26]. -- 6 of 9 -- [2026] WASC 231 GETHING J Page 7 (f) where a will has been duly executed, three presumptions arise - testamentary capacity, knowledge and approval and testamentary intention; and (g) the presumptions in (f) may, however, be displaced. 11 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 Helen’s Will 12 A copy of Helen’s Will is attached to Christopher’s Affidavit. The original Will is being held by Helen’s former solicitors, Cullen Macleod Lawyers. 13 As mentioned, Mr Cahill was one of the two subscribing witnesses to the Will. In the Cahill Affidavit, he deposes that Helen executed the Will on 6 October 2022, by signing her signature at the end of the Will at the attestation clause, and at the foot of each page, in his presence and that of the other witness, Rebecca Louise Thomas (whose address is provided), both of them being present at the same time and that they thereupon attested and subscribed the Will in the presence of Helen and each other. 14 As mentioned, in the Will, appointed Christopher and Sarah, jointly, as executors. 15 Helen gave her superannuation to her nieces Claire Morris (Claire) and Katherine Morris (Katherine) in equal shares. Claire and Katherine are the first and second named second defendants. 16 Helen left the residue of her estate to Christopher and Amanda Thompson (Amanda). Amanda was another friend of Helen. Christopher (in his capacity as beneficiary) and Amanda are the third and fourth named second defendants. Has Helen’s Will been proven in solemn form? 17 The Will is regular on its face. This coupled with the evidence of Mr Cahill in [13], leads me to find, that: 7 Cahill v Morgan [2026] WASC 194 [50] (Bydder J); Fairclough v Cvitan [2019] WASC 370 [26] (Kenneth Martin J). -- 7 of 9 -- [2026] WASC 231 GETHING J Page 8 (a) Helen signed the Will; (b) two witnesses signed Helen’s Will; and (c) Helen and the two witnesses attest that they signed Helen’s Will in each other’s presence. 18 The findings in [17] are sufficient to engage the presumption of due execution. There are no facts which in any way suggest that this presumption has been displaced. Accordingly, I find that Helen’s Will was duly executed. 19 The finding in [18] that Helen’s Will was duly executed in turn engages the presumptions of testamentary capacity, knowledge and approval and testamentary intention. There are again no facts which in any way suggest that any of these presumptions have been displaced. Accordingly, I find in terms of each of these presumptions. 20 In Christoper’s Affidavit, he adds that (a) he believes the Will to be Helen's true and last will and to be unrevoked and that there is no codicil thereto; (b) to the best of his knowledge and belief, Helen was not married at the time of making the Will and did not marry after making the Will; (c) Helen left property in Western Australia; and (d) if he obtains a grant of probate of Helen's Will, together with the Sarah, he will administer Helen's estate according to law. 21 I am satisfied that it is appropriate to make a grant of probate over Helen’s Will in solemn form. Final orders 22 In the ASOC, no order for costs is sought. I assume that this is pursuant to the Deed as this amendment was made in the ASOC. Accordingly, I will make no orders as to costs. 23 The orders giving effect to this decision are then as follows: 1. It is pronounced that the will and testament of Helen Georgina Baty dated 6 October 2022 is valid and has force as the last will of the late Helen Georgina Baty (Will). -- 8 of 9 -- [2026] WASC 231 GETHING J Page 9 2. A registrar issue a grant of probate of the Will to the Plaintiff and the First Defendant, jointly, being the executors appointed under the Will, with the terms of the grant to be settled by the registrar. 3. Within 3 business says of service of this order, Cullen Macleod Lawyers deliver up the original of the Will to the Probate Registry, and advise the Plaintiff’s lawyers in writing that this order has been complied with. 4. Within 5 business days of this order, the Plaintiff and the First Defendant file an application for a grant of probate in terms of the order in paragraph 2. 5. There be no order as to the costs of the action. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. OB Associate to the Hon Justice Gething 9 JUNE 2026 -- 9 of 9 --