SOKARCH -v- PETRILLO [2026] WASC 225
[2026] WASC 225
Page 1
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION : SOKARCH -v- PETRILLO [2026] WASC 225
CORAM : STRK J
HEARD : 4 JUNE 2026
DELIVERED : 4 JUNE 2026
FILE NO/S : CIV 1464 of 2024
BETWEEN : STEVEN DAVID SOKARCH AS EXECUTOR OF
THE WILL OF JULIANNA SZAKACS
Plaintiff
AND
ANITA PETRILLO
First Defendant
JOHN LAGANA
Second 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 defendants to withdraw their defence and counterclaim - Action
entered for trial on an unopposed basis - Turns on own facts
Legislation:
Administration Act 1903 (WA)
Non-Contentious Probate Rules 1967 (WA)
Rules of the Supreme Court 1971 (WA) O 73
Wills Act 1970 (WA)
-- 1 of 29 --
[2026] WASC 225
Page 2
Result:
Grant to be made in solemn form of a will dated 13 April 2018 in favour of the
plaintiff
Category: B
Representation:
Counsel:
Plaintiff : CM Hershowitz
First Defendant : No appearance
Second Defendant : No appearance
Solicitors:
Plaintiff : East and Associates
First Defendant : Lawley Legal
Second Defendant : Lawley Legal
-- 2 of 29 --
[2026] WASC 225
Page 3
Cases referred to in decision:
Allen v Quinn [2025] WASC 2
Banks v Goodfellow (1870) LR 5 QB 549
Brown v Willoughby [2012] WASC 20
Burgess v Davey [2025] WASC 343
Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786
Fisher v Kay [2010] WASCA 160
Gangemi v Monaco [2020] WASC 183
In Re Levy (Deceased) (No 2) [1957] VR 662
In the Will of Wilson (1897) 23 VLR 197
Khan v Khan [2025] WASC 396
Lock v Phillips [2014] WASC 92
McKinnon v Voigt [1998] 3 VR 543
Osborne v Smith (1960) 105 CLR 153
Pettit v Waters-Pettit [2026] WASC 25
Re Gramp, Deceased; Finck v Gramp [1952] SASR 12
Re Kuhl; Kuhl v Liebcheschel [1933] SASR 394
Scaffidi v Scaffidi [No 2] [2022] WASC 227
Scattini v Matters [2004] QSC 459
Skender v Skender [2026] WASC 196
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 29 --
[2026] WASC 225
Page 4
Table of Contents
Overview .................................................................................................................................... 5
Applicable principles .................................................................................................................. 7
Displacement of the presumptions ....................................................................................... 10
Evidence ................................................................................................................................... 11
Affidavit of scripts ................................................................................................................ 12
What each of the testamentary documents recorded ............................................................ 12
Further affidavits .................................................................................................................. 17
Disposition ................................................................................................................................ 19
Were all necessary persons named as defendants or given notice of the proceeding? ......... 19
13 April 2018 Will................................................................................................................ 22
Earlier testamentary instruments .......................................................................................... 26
Conclusion and costs ................................................................................................................ 26
Sch A - Orders made on 4 June 2026 ....................................................................................... 28
-- 4 of 29 --
[2026] WASC 225
STRK J
Page 5
STRK J:
Overview
1 This probate action concerned the estate of the late
Julianna Szakacs (the deceased) who died on 5 December 2023. The
deceased was survived by, among others, her son Steven David
Sokarch (the plaintiff), and two grandchildren being Anita Petrillo (the
first defendant) and John Lagana (the second defendant).
2 On 11 January 2024 the defendants each lodged a caveat in the
probate jurisdiction of the Court with respect to the estate of the
deceased.1
3 On or about 18 January 2024 the plaintiff applied in the Court's
non-contentious probate jurisdiction for probate of a will dated 13 April
2018 (the 13 April 2018 Will) to be granted to the plaintiff, the
executor appointed by that will.2 That application did not progress as a
consequence of the caveats.
4 On 26 April 2024 the plaintiff commenced this contentious
probate action by filing a writ of summons, and named Anita Petrillo
and John Lagana as the first and second defendants, respectively. The
writ was indorsed with a statement of claim by which the plaintiff
sought relief in the following terms:
1. An Order that the Court pronounce the force and validity of the
last will and testament of Julianna Szakacs executed on 13 April
2018.
2. The court directs the Probate Registrar to issue (or seal) a grant
of Probate in solemn form in favour of the plaintiff
Steven David Sokarch.
3. The costs be paid by the first defendant and the second
defendant.
4. Such further or other orders that the Court deems fit.
5 While the action was initially defended and a counterclaim was
prosecuted on behalf of the defendants, following a mediation on
30 October 2025 and by orders made by the consent of the parties on
18 March 2026:
1 CAV 5 of 2024 and CAV 6 of 2024.
2 PRO 501 of 2024.
-- 5 of 29 --
[2026] WASC 225
STRK J
Page 6
(a) the defendants were granted leave to withdraw their defence and
counterclaim filed on 10 April 2025;3 and
(b) on the defendants filing a notice of intention to abide, leave was
granted to the plaintiff to set the matter down for trial on an
undefended basis pursuant to O 73 r 19 of the Rules of the
Supreme Court 1971 (WA), without the need to file a certificate
of readiness.4
6 The defendants filed a notice of intention to abide on 17 March
2026 whereby they confirmed they did not intend to take part in the
proceeding and would accept any order made by the Court other than as
to costs.
7 On 21 May 2026 a minute of proposed final orders was filed on
behalf of the plaintiff seeking orders in the following terms:
1. The Court pronounce the force and validity of the last will and
testament of the late Julianna Szakacs dated 13 April 2018
(Will) in solemn form of law.
2. A Probate Registrar is directed to issue a grant of probate of the
[13 April 2018] Will in solemn form of law to Steven
David Sokarch, the executor appointed under the Will.
3. There be no order as to costs.
4. There be liberty to apply.
8 On 4 June 2026 the trial proceeded on an undefended basis, and
the defendants did not participate in the trial. Evidence was adduced by
the reading of affidavits, which are outlined later in these reasons, and
the tender of a document. The Court also received in advance of the
trial the plaintiff's outline of submissions.5
9 For the reasons that follow, among other things, an order was
made at the conclusion of the trial pronouncing the force and validity of
the 13 April 2018 Will in solemn form of law. The orders made on
4 June 2026 are reproduced at sch A to these reasons.
3 Order 1 of the orders made by Registrar Whitbread on 18 March 2026.
4 Order 3 of the orders made by Registrar Whitbread on 18 March 2026.
5 Plaintiff's outline of submissions filed on 21 May 2026.
-- 6 of 29 --
[2026] WASC 225
STRK J
Page 7
Applicable principles
10 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.6
11 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.7
12 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:8
… 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 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.
6 Allen v Quinn [15] - [25].
7 Wheatley v Edgar [2003] WASC 118 [18].
8 Wheatley v Edgar [26] - [27].
-- 7 of 29 --
[2026] WASC 225
STRK J
Page 8
13 In Estate Kouvakas; Lucas v Konakas [2014] NSWSC 786,
Lindsay J made the following observations:9
… 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
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.
14 In order for a will to be pronounced in solemn form, it is necessary
for the propounding party to establish due execution of the will. The
propounding party must also 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.10 These requirements have
often been described by the summary terms of due execution,
testamentary capacity, knowledge and approval, and testamentary
intention.
15 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
9 Estate Kouvakas; Lucas v Konakas [251], [262] - [263].
10 Fisher v Kay [2010] WASCA 160 [82].
-- 8 of 29 --
[2026] WASC 225
STRK J
Page 9
presence. This attestation of the witnesses must occur in the deceased's
presence.11
16 As to testamentary capacity, it is sufficient for the purposes of this
case to observe as follows:12
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.
17 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.
18 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,
however, that even a marked decline in a testator's intellectual capacity
through advancing age establishes lack of testamentary capacity.
19 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.13
20 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
11 Wills Act 1970 (WA) s 8.
12 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].
13 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].
-- 9 of 29 --
[2026] WASC 225
STRK J
Page 10
need to be looked at in assessing whether testamentary intention was
established.14
21 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.15 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.16 These
presumptions may however be displaced.
22 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.17 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.18
Displacement of the presumptions
23 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.19 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'.20
14 Allen v Quinn [24].
15 Fisher v Kay [83].
16 Fisher v Kay [85]; Khan v Khan [2025] WASC 396 [26]; Allen v Quinn [24] - [25].
17 Wills Act s 32(2)(a).
18 Wills Act s 32(3).
19 Pettit v Waters-Pettit [58].
20 Brown v Willoughby [2012] WASC 20 [91], accepting as a correct statement of law a passage from
Theobald on Wills (16th ed, 2001).
-- 10 of 29 --
[2026] WASC 225
STRK J
Page 11
24 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.21
25 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:22
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.
26 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
approval, although the weight given to such factors is determined in
light of all the circumstances of the case.23
27 In this case the plaintiff pressed for the Court to pronounce for the
force and validity of the 13 April 2018 Will. It was the plaintiff's
position that the 13 April 2018 Will was duly executed and therefore
the presumption of testamentary capacity arose with no evidence to
displace this presumption. Further, it was submitted that the 13 April
2018 Will was rational on its face, and that no known circumstances
which gave rise to any suspicion existed, the result of which being that
knowledge and approval of the contents of the 13 April 2018 Will was
established and it was effective in revoking all prior wills.
Evidence
28 At the trial of the action, counsel for the plaintiff read four
affidavits, one of which was an affidavit of scripts. An outline of the
evidence before the Court is set out below. The following is not
intended to be a comprehensive recitation of each affidavit.
21 Brown v Willoughby [91].
22 Scaffidi v Scaffidi [No 2] [96], cited in Pettit v Waters-Pettit [61].
23 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].
-- 11 of 29 --
[2026] WASC 225
STRK J
Page 12
Affidavit of scripts
29 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, while two affidavits of scripts
were made by the plaintiff, only one was read at trial.24
30 The plaintiff made an affidavit of scripts which was sworn on
23 April 2026. Among other things, he deposed that the only scripts of
the deceased of which he was aware were: 25
(a) the 13 April 2018 Will;
(b) a will dated 27 February 2017 (herein referred to as the
27 February 2017 Will);
(c) a will dated 25 May 2014 (herein referred to as the 25 May
2014 Will); and
(d) a will dated 23 February 2008 (herein referred to as the
23 February 2008 Will).
31 The plaintiff attached to his affidavit a copy of each of the
documents, which were marked 'Attachment A' to 'Attachment D'. He
further deposed that he had no knowledge of any documents: 26
a. Being or purporting to be, or having the form or effect of, a will
or codicil or other testamentary instrument of the Deceased;
b. Being or purporting to be a draft of any will or codicil or other
testamentary instrument of the Deceased;
c. Being or purporting to be written instructions for such an
instrument made by or at the request of or under the instructions
of the deceased.
What each of the testamentary documents recorded
32 Below is an overview of each of the four documents described in
and attached to the plaintiff's affidavit of scripts.
24 Plaintiff's outline of submissions filed on 21 May 2026, par 4.
25 Affidavit of scripts of SD Sokarch sworn on 23 April 2026, par 2.
26 Affidavit of scripts of SD Sokarch sworn on 23 April 2026, par 3.
-- 12 of 29 --
[2026] WASC 225
STRK J
Page 13
23 February 2008 Will
33 The 23 February 2008 Will was the first of the four documents
purporting to record the testamentary intentions of the deceased. A
proforma will form was used and completed by hand.
34 Among other things, the 23 February 2008 Will recorded that:
(a) the deceased revoked all other documents of testamentary intent
previously made by the deceased and that the 23 February 2008
Will was intended to be the last will and testament of the
deceased;
(b) the deceased appointed the plaintiff as the executor and trustee
of the 23 February 2008 Will; and
(c) the deceased's estate was to be distributed as follows:
After payment of my debts, funeral and testamentary expenses I
leave an amount of $50,000 to two of my grandchildren
John Lagana and Anita Petrillo to be shared equally. All the rest
of my estate both real and personal I give to my son
Steven David Sokarch if he survives me.
Failing him, then I leave all my estate both real and personal to
my five grandchildren Eva Baroni, Michael Sokarch,
Christopher Sokarch, John Lagana and Anita Petrillo to be
shared equally.
35 A letter made by the deceased was attached to the 23 February
2008 Will, in which the deceased recorded her reasons for distributing
her estate in the manner specified in that will.27
36 I also noted that the 23 February 2008 Will appeared to have been
executed on each page by the deceased, in the presence of two
witnesses (Ian Hill and Graham George Pain).
25 May 2014 Will
37 The 25 May 2014 Will was the second document purporting to
record the testamentary intentions of the deceased. The cover page
recorded that it had been prepared by Newton's Law Pty Ltd trading as
Newton's Law Barristers and Solicitors.
27 Affidavit of scripts of SD Sokarch sworn on 23 April 2026, Attachment D.
-- 13 of 29 --
[2026] WASC 225
STRK J
Page 14
38 Again, the deceased recorded an intention to revoke all former
wills and codicils, and to appoint the plaintiff as executor and trustee.
39 By the 25 May 2014 Will the deceased made specific gifts (of a
piece of jewellery or a piece of personal effects) from the deceased's
estate to her granddaughter (the first defendant) and to her three
grandsons (who included the second defendant). With the exceptions of
the specific gifts, the deceased left the residuary of her estate to the
plaintiff.
40 The deceased also noted her intention to exclude Gaetano Lagana
(the defendants' father) and Eva Baroni (the deceased's other
granddaughter) from benefitting from her estate.
41 I also noted that the 25 May 2014 Will appeared to have been
executed on each page by the deceased, in the presence of two
witnesses (Robert Gregory Newton and Lorraine Susan Cornish, both
lawyers).
27 February 2017 Will
42 The 27 February 2017 Will was the third document purporting to
record the testamentary intentions of the deceased. The firm logo and
details recorded on the second page suggested that the document had
been prepared by solicitors Birman & Ride.
43 Among other things, the 27 February 2017 Will recorded:
(a) the deceased's intention to revoke all previous wills (cl 1);
(b) that the deceased appointed the plaintiff and Steve Michael
Lanyi (the deceased's brother in law) jointly as executor and
trustee (cl 3); and
(c) that the trustee was to hold the whole of the deceased's estate on
trust (cl 4):
4.1 to pay and discharge all of [the deceased's] debts,
funeral and testamentary expenses and all tax payable
because of [her] death;
4.2 to divide the residue of [the deceased's] estate into four
equal parts for distribution as follows:
4.2.1 two parts to [the plaintiff] if he survives [the
deceased], but if he does not survive [her] then
-- 14 of 29 --
[2026] WASC 225
STRK J
Page 15
to divide the parts [the plaintiff] would
otherwise have taken equally between those of
[the deceased's] grandsons Michael Raymond
Sokarch and Christopher Allan Sokarch who
survive [her] as tenants in common;
4.2.2 one part to [the deceased's] grandson
John Lagana if he survives [her]; and
4.2.3 one part to [the deceased's] grandaughter
Anita Petrillo if she survives [her];
but if any of the trusts in this clause 4.2 fail then to divide those
parts pro-rata among the other parts that have not failed and this
provision applies both to the original parts and to the parts
which have increased as a result of this provision.
44 I also noted that the 27 February 2017 Will appeared to have been
executed on each page by the deceased and in the presence of two
witnesses (Matthew Robert Neyle Gunn and Krysten Sasha
Russo-Battagliolo, both lawyers employed by Birman & Ride).
13 April 2018 Will
45 The 13 April 2018 Will was the last of the four documents
purporting to record the testamentary intentions of the deceased, and
was the will the plaintiff sought to propound. The document has a cover
page which records that it had been prepared by Newton's Law
Barristers and Solicitors.
46 Among other things, the 13 April 2018 Will recorded:
(a) the deceased's intention to renounce all former wills and
codicils and included a declaration that the 13 April 2018 Will
was the deceased's last will and testament (cl 1);
(b) that for the purposes of the deceased's will, 'my Estate' meant all
real and personal property of whatever nature and wherever
situated and included but was not limited to real property
located at 7 Selwyn Place, Rivervale in the State of Western
Australia (cl 2.1(a));
(c) that 'My Executor and Trustee' included the person named in
cl 4 while acting in that capacity, and any person acting in the
capacity of the deceased's personal representative for the time
being (cl 2.1(b));
-- 15 of 29 --
[2026] WASC 225
STRK J
Page 16
(d) that 'My Children' in relation to a beneficiary meant children or
child, and issue had a corresponding meaning (cl 2.1(c));
(e) that the deceased appointed the plaintiff as executor and trustee
of the will, and directed him as executor and trustee to pay from
her estate all of the deceased's debts, funeral and testamentary
expenses, probate, capital gains tax and other like duties and
taxes payable on or in respect of the deceased's estate and the
costs involved in the execution of the trusts of the will (cl 4);
(f) that the deceased bequeathed the following specific gifts (cl 5):
5.1 I BEQUEATH to my grand-son JOHN LAGANA
whatever piece, of his choice, from my jewellery
collection.
5.2 I BEQUEATH to my grand-daughter
ANITA PETRILLO (formerly ANITA LAGANA)
whatever piece, of her choice, from my jewellery
collection.
5.3 I BEQUEATH to my grand-son
MICHAEL RAYMOND SOKARCH whatever piece,
of his choice, from my personal effects.
5.4 I BEQUEATH to my grand-son
CHRISTOPHER ALLAN SOKARCH whatever
piece, of his choice, from my personal effects.
(g) that the residuary of the deceased's estate was to be distributed
as follows (cl 6):
6 .1 I GIVE to my son STEVEN DAVID SOKARCH all
of my real and personal estate with the exception of the
specific gifts at clause 5.
(h) that if the plaintiff was to predecease the deceased or die before
attaining a vested interest in the deceased's estate, the rest and
residue of the estate not otherwise disposed of under the will
was to be divided into equal shares among the following of the
deceased's grandchildren (cl 6.2.1):
(i) Anita Petrillo (the first defendant);
(ii) John Lagana (the second defendant);
(iii) Michael Raymond Sokarch; and
-- 16 of 29 --
[2026] WASC 225
STRK J
Page 17
(iv) Christopher Allan Sokarch; and
(i) that the deceased's granddaughter Eva Baroni must not take any
benefit from the deceased's estate (cl 7).
47 The 13 April 2018 Will further provided for the powers of the
executor and trustee (cl 8), and recorded the deceased's instructions for
her funeral arrangements (cl 9).
48 Again, I noted that the 13 April 2018 Will appeared to have been
executed on each page by the deceased, in the presence of two
witnesses (Mr Newton and Ms Cornish, both lawyers).
Further affidavits
Affidavits of Steven David Sokarch
49 The plaintiff swore an affidavit on 23 April 2026, to which he
attached four documents. On 3 June 2026 the plaintiff swore a further
affidavit in which he corrected two errors that he had made in his
earlier affidavit. Summarised below is the plaintiff's evidence, as
corrected.
50 Among other things, the plaintiff deposed to being the son of the
deceased, who was born on 14 September 1932 and died on
5 December 2023.28 The first document attached to the plaintiff's
affidavit was a copy of the deceased's death certificate.
51 The plaintiff further deposed that the deceased left a last will and
testament which was executed on 13 April 2018 in the presence of the
subscribing witnesses, Mr Newton and Ms Cornish;29 that the deceased
had attained the age of 18 years at the date of execution;30 that the
13 April 2018 Will was not revoked by any later will;31 that there was
no codicil to that will;32 and that the deceased was not married when the
13 April 2018 Will was executed and did not marry after she had
executed the same.33 The second document attached to the plaintiff's
affidavit was a copy of the 13 April 2018 Will, and the third was a
statement of assets and liabilities of the estate of the deceased.
28 Affidavit of SD Sokarch sworn on 23 April 2026, pars 2 and 3.
29 Affidavit of SD Sokarch sworn on 23 April 2026, pars 5 and 6.
30 Affidavit of SD Sokarch sworn on 23 April 2026, par 7.
31 Affidavit of SD Sokarch sworn on 23 April 2026, par 8.
32 Affidavit of SD Sokarch sworn on 23 April 2026, par 9.
33 Affidavit of SD Sokarch sworn on 23 April 2026, par 10.
-- 17 of 29 --
[2026] WASC 225
STRK J
Page 18
52 As to due execution, the plaintiff deposed that he had reviewed the
13 April 2018 Will, and had observed that the signature on the will was
the signature of the deceased.34
53 The plaintiff deposed that he believed the signatures of the
witnesses on the 13 April 2018 Will were the signatures of Mr Newton
and Ms Cornish, and recorded as follows:35
a. Robert and Lorraine were the witnesses to a will made by the
deceased on 25 May 2014 (2014 Will), a copy of which is
Attachment D.
b. The witnesses' signatures on the 2014 Will appear to be the
same as the witnesses' signatures on the Will.
c. Both the 2014 Will and the Will record that the witnesses are
Robert and Lorraine.
d. I had personal dealings with Robert and Lorraine prior to the
deceased's execution of the 2014 Will and the Will, namely:
i. On the day the 2014 Will was executed I was at the
deceased's residence and answered the door when
Robert and Lorraine arrived.
ii. Robert and Lorraine introduced themselves using words
to the effect of 'I am Robert Greg, this is Lorraine; we
are from Lawley Legal Newton's Law and we are here
to finalise your mother's will'.
iii. I left the house before the 2014 Will was signed but
when I arrived back home around one hour later Robert
and Lorraine were still present in the home.
iv. The deceased and I had a chat to Robert and Lorraine
before they left.
v. On the day of the [13 April 2018] Will was executed, I
was with the deceased when Robert and Lorraine
arrived at the home.
vi. I recognized them as the same persons that witnessed
the 2014 Will.
vii. I left the home before the deceased gave instructions
for, and signed, the [13 April 2018] Will.
34 Affidavit of SD Sokarch sworn on 23 April 2026, par 13.
35 Affidavit of SD Sokarch sworn on 23 April 2026, par 14; as corrected by the affidavit of SD Sokarch
sworn on 3 June 2026, par 5.
-- 18 of 29 --
[2026] WASC 225
STRK J
Page 19
viii. When I returned to the home that same day, Robert and
Lorraine were no longer there and the deceased said
words to the effect that she had signed a new will.
54 As to the reference to 'Greg' in par (d)(ii) (reproduced above), it
was the plaintiff's evidence that 'even though Robert Gregory Newton
wrote his name that way, he would introduce himself to me as
"Greg".'36 The plaintiff also deposed that should he be granted probate
of the deceased's estate he would administer the estate according to
law.37
Affidavit of Terence William East
55 Terrence William East also made an affidavit, which he swore on
23 April 2026 in support of the plaintiff's application. Mr East deposed
to being the plaintiff's solicitor, having commenced acting for the
plaintiff in around mid-April 2025 when he was a solicitor employed by
the law firm HFM Legal.38
56 Mr East deposed to the steps he took to contact the witnesses to
the 13 April 2018 Will, and to the basis for his belief that the witnesses
are now deceased.39
57 Attached to Mr East's affidavit was a copy of the 13 April 2018
Will; an ABN search of Newton's Law Pty Ltd; an email chain
regarding the estate of Robert Gregory Newton; a survivorship
application lodged on behalf of Robert Gregory Newton lodged on
9 July 2025; and a transmission application lodged on behalf of
Shauna Mary Newton on 9 July 2025. These were attached to Mr East's
affidavit and marked 'Attachment A' to 'Attachment E' respectively.
Disposition
58 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?
59 As I recently recorded in Skender v Skender [2026] WASC 196 at
[101] to [104], 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
36 Affidavit of SD Sokarch sworn on 3 June 2026, par 6.
37 Affidavit of SD Sokarch sworn on 23 April 2026, par 12.
38 Affidavit of TW East sworn on 23 April 2026, par 5.
39 Affidavit of TW East sworn on 23 April 2026, pars 4 - 12.
-- 19 of 29 --
[2026] WASC 225
STRK J
Page 20
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.40
60 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.41
61 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.42
62 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
may be sufficient to bind the party in the result if the party does not
seek to intervene having had notice.43
63 I understood that the deceased was widowed when she died, I also
understood that she had three children, the plaintiff, Elizabeth Lagana,
and Gisella.44 Both Ms Lagana and Gisella had predeceased the
deceased. The plaintiff was the deceased's only surviving issue.
64 I understood that the deceased had five grandchildren, four of
whom were nominated to receive specified gifts under the 13 April
2018 Will. The deceased's grandchildren were the first defendant and
the second defendant (the only two children of the late
Elizabeth Lagana), Michael and Christopher (the two sons of the
plaintiff), and Ms Eva Baroni (formerly known as Eva Kovac, the
daughter of the plaintiff), who according to the 13 April 2018 Will had
been estranged from the deceased for a considerable period of time.
40 LexisNexis, Civil Procedure Western Australia (at 28 May 2026) at [73.1.5], citing Re Kuhl; Kuhl v
Liebcheschel [1933] SASR 394, 395, 399.
41 LexisNexis, Civil Procedure Western Australia (at 28 May 2026) at [73.1.5], citing Wytcherley v Andrews
(1871) LR 2 PD 327, 328, 329.
42 LexisNexis, Civil Procedure Western Australia (at 28 May 2026) at [73.5.2].
43 LexisNexis, Civil Procedure Western Australia (at 28 May 2026) at [73.5.2], citing Osborne v Smith
(1960) 105 CLR 153; see also Gangemi v Monaco [2020] WASC 183 [8].
44 Affidavit of SD Sokarch sworn on 23 April 2026, Attachment A.
-- 20 of 29 --
[2026] WASC 225
STRK J
Page 21
65 In the disposition of this matter I considered whether all necessary
parties had been joined, or alternatively if they had been given notice of
the proceeding.
Persons named as executors
66 The plaintiff was named as executor in all four purported
testamentary documents the subject of this proceeding. The only other
person named as an executor under a will of the deceased was the
deceased's brother in law, Mr Lanyi, who had been jointly named as an
executor with the plaintiff under the 27 February 2017 Will.
67 As to Mr Lanyi, I noted that he had been named as the second
defendant to the counterclaim that was pleaded by the defendants
(which was later withdrawn). A review of the Court's records reveals
that he did not file an appearance in the action. However, in the course
of the trial it was confirmed that Mr Lanyi had been served with the
counterclaim, and had acknowledged acceptance of service in writing
on 14 May 2025.45
68 While Mr Lanyi was not joined as a defendant, he was on notice of
the probate action. I also noted that the probate action had been
defended by two beneficiaries under the 27 February 2017 Will. In all
of the circumstances I was satisfied that it was not necessary that
Mr Lanyi be joined to the proceeding.
Persons having lodged a caveat
69 Both defendants in this matter each lodged a caveat in 2024.
Theirs were the only caveats lodged. Their respective interests were
affected by an order pronouncing the force and validity of the 13 April
2018 Will, given that the terms of the 23 February 2008 Will and the
27 February 2017 Will were significantly more advantageous to them.
They were necessary parties to the probate action, and were properly
joined as defendants.
Michael Sokarch and Christopher Sokarch
70 As to Michael and Christopher, both were named beneficiaries of
specific gifts in the 13 April 2018 Will. Therefore both would benefit
from an order pronouncing the force and validity of the 13 April 2018
Will to the extent of those gifts.
45 Exhibit A.
-- 21 of 29 --
[2026] WASC 225
STRK J
Page 22
71 The benefit to Michael and Christopher under the 13 April 2018
Will was greater than that which they would have received if the
deceased had died intestate (as their father survived the deceased), was
greater than that which they would have received under the earlier
23 February 2008 Will and 27 February 2017 Will, and was equal to
that which they would have received under the 25 May 2014 Will (as
again, beneficiaries of specific gifts only).
72 It was unclear whether Michael and Christopher were on notice of
this proceeding. However, in the circumstances, I was satisfied that it
was not necessary that they be joined to the proceeding.
Eva Baroni
73 Ms Baroni was included as a potential beneficiary under the
23 February 2008 Will (if the plaintiff did not survive the deceased).
There was no provision made for her in the 25 May 2014 Will and she
was expressly excluded as a beneficiary under the 27 February 2017
Will and 13 April 2018 Will. She would only have an interest in the
estate of the deceased if all of the wills failed such that the deceased
died intestate, and the plaintiff had predeceased the deceased.46 In all of
the circumstances, I was satisfied that it was not necessary that
Ms Baroni be joined to the proceeding.
74 In these circumstances, I was satisfied that all necessary parties
were on notice of the proceeding or had been joined.
13 April 2018 Will
75 I then turned to first consider the validity of the 13 April 2018
Will and whether the Court should pronounce its force and validity.
The terms of the 13 April 2018 Will
76 The deceased left an estate with an estimated net value of
$618,090.97, the main asset of which was a refundable accommodation
deposit held by CraigCare to the sum of $427,500.47
77 The 13 April 2018 Will left the entire estate to the plaintiff,
subject to specific gifts of jewellery and personal effects to four of the
deceased's grandchildren (the deceased having excluded Ms Baroni).48
46 Administration Act 1903 (WA) s 14 (table, item 5), (2b).
47 Affidavit of SD Sokarch sworn on 23 April 2026, Attachment C.
48 Plaintiff's outline of submissions filed on 21 May 2026, par 2.
-- 22 of 29 --
[2026] WASC 225
STRK J
Page 23
78 The 13 April 2018 Will was made following the deaths of the
deceased's daughters, and the death of the deceased's husband.49
The preparation of the 13 April 2018 Will
79 The 13 April 2018 Will records that it was prepared by the
deceased with the assistance of Newton's Law Barristers and Solicitors,
and the deceased's signature was witnessed by Mr Newton and
Ms Cornish, both lawyers then employed by Newton's Law Barristers
and Solicitors (the firm which also prepared the 25 May 2014 Will).
Due Execution
80 As Mr Newton and Ms Cornish are now deceased,50 the plaintiff
cannot adduce direct evidence of the due execution of the 13 April
2018 Will. However, due execution of a will may be presumed when 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.51
81 In this case, it was submitted that the Court could be satisfied,
having regard to the plaintiff's evidence and the contents of the 13 April
2018 Will, that it was duly executed by the deceased.52
82 I noted that the attestation clause was in the following unequivocal
terms:
SIGNED by the Testatrix, JULIANNA SZAKACS, as and for her last
Will and Testament in the presence of us both being present at the same
time who at her request and in her presence and in the presence of each
other have signed our names as attesting witnesses.
83 Aside from the cover page, each page of the 13 April 2018 Will
was signed by the deceased as testatrix and the two witnesses.
84 I was also cognisant of the plaintiff's evidence that while he was
not present when the 13 April 2018 Will was signed, on the day it was
executed, the plaintiff was with the deceased when the witnesses
arrived at the house; and upon the plaintiff's return to the home later
that day, the plaintiff's evidence was that the witnesses were no longer
49 Affidavit of SD Sokarch sworn on 23 April 2026, Attachment A.
50 Affidavit of TW East sworn on 23 April 2026, par 4.
51 Wills Act s 8.
52 Plaintiff's outline of submissions filed on 21 May 2026, par 15.
-- 23 of 29 --
[2026] WASC 225
STRK J
Page 24
there and the deceased said words to the effect that she had signed a
new will.53
85 On the evidence read, I was satisfied that the presumption of due
execution arose in respect of the 13 April 2018 Will. As that
presumption was not displaced, the 13 April 2018 Will was taken to be
duly executed.54
Testamentary intention, testamentary capacity, and knowledge and approval
86 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 13 April 2018 Will by reason of due execution.
Testamentary Capacity
87 The presumption of testamentary capacity arose from due
execution,55 and the plaintiff relied upon the presumption to establish
the same. The plaintiff submitted that the presumption was not rebutted
as the 13 April 2018 Will was rational on its face (the deceased having
left her estate to her only surviving child, but having bequeathed
specific gifts of personal property to a number of her grandchildren).
Further, at cl 6.1 of the 13 April 2018 Will, the deceased gave cogent
reasons for leaving the residuary of her estate to the plaintiff.
88 To the extent the deceased had excluded a grandchild from her
will, I noted that the deceased had excluded the same grandchild since
she made her 25 May 2014 Will, and so there was consistency in her
position with respect to that grandchild over a number of years. Further,
at cl 7.1 of the 13 April 2018 Will, the deceased gave a cogent reason
for the exclusion.
89 On behalf of the plaintiff it was also noted that there was no
evidence before the Court giving rise to any doubt regarding the
deceased's capacity at the time the 13 April 2018 Will was executed.56
90 I further noted that the 13 April 2018 Will was made over five
years before the deceased died.
53 Affidavit of SD Sokarch sworn on 23 April 2026, par 14(d).
54 Fisher v Kay [83], citing Re Gramp, Deceased; Finck v Gramp [1952] SASR 12.
55 Fisher v Kay [85]; Khan v Khan [26]; Allen v Quinn [24] - [25].
56 Plaintiff's outline of submissions filed on 21 May 2026, pars 16 - 18.
-- 24 of 29 --
[2026] WASC 225
STRK J
Page 25
91 In the disposition of this matter I considered the dispositions made
by the deceased under the 13 April 2018 Will, and the extent to which
the deceased provided for those persons who were the object of her
affection during her life. I accepted that there was no evidence which
gave rise to suspicion or doubt regarding the deceased's capacity.
Knowledge and approval, and testamentary intention
92 Again, the presumption of testamentary intention and knowledge
and approval of the contents of the 13 April 2018 Will arose from due
execution,57 and the plaintiff relied solely upon the presumption to
establish the same.58
93 On 10 April 2025 a defence and counterclaim was filed by the
defendants in this matter. Among other things, the defence denied that
due execution occurred and denied that the deceased possessed the
requisite testamentary capacity, and further claimed that suspicious
circumstances were present. However, the defence and counterclaim
were withdrawn and a notice of intention to abide was filed by the
defendants following orders of the Court made on 18 March 2026.59 As
such, the matters pleaded in the defence and counterclaim were not
matters which I weighed in the disposition of this matter.
94 The plaintiff submitted that there were no known circumstances
which gave rise to any suspicion regarding the deceased's wishes at the
time the 13 April 2018 Will was executed,60 and I was satisfied of the
same.
95 Testamentary capacity is a necessary precondition to the
establishment of knowledge and approval, which in this case could be
presumed.61
96 The 13 April 2018 Will was prepared by persons who took no
benefit under the will. The cover page recorded that it was prepared by
Newton's Law Barristers and Solicitors. Further, the evidence suggested
that there had been an opportunity for the deceased to receive
independent advice regarding the will, in the absence of the plaintiff.62
57 Fisher v Kay [85]; Khan v Khan [26]; Allen v Quinn [24] - [25].
58 Plaintiff's outline of submissions filed on 21 May 2026, pars 19 and 20.
59 Orders 1 and 2 of the orders made by Registrar Whitbread on 18 March 2026.
60 Plaintiff's outline of submissions filed on 21 May 2026, par 19.
61 Burgess v Davey [2025] WASC 343 [79].
62 Affidavit of SD Sokarch sworn on 23 April 2026, par 14(d).
-- 25 of 29 --
[2026] WASC 225
STRK J
Page 26
97 Further, the clauses of the 13 April 2018 Will were complete,
cogent and certain. Provision was also made for the instance that a
beneficiary predeceased any of the remaining beneficiaries.63
98 It was the plaintiff's position that the Court should be satisfied of
the formal validity of the 13 April 2018 Will and that it was made by a
'free and capable' testator.64
99 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
the validity of the will of which probate is sought.65
100 On the evidence read, I was satisfied that the presumptions of
testamentary capacity, testamentary intention, and knowledge and
approval arose by way of due execution, and there was no cause to
displace those presumptions. Therefore I found that the 13 April 2018
Will was made by the deceased with the requisite testamentary
intention, testamentary capacity, and knowledge and approval.
Earlier testamentary instruments
101 By the revocation clause of the 13 April 2018 Will the deceased
provided that (cl 1):
I REVOKE all former Wills and Codicils made by me and DECLARE
this to be my Last Will and Testament.
102 As I was satisfied that the 13 April 2018 Will was valid, being
duly executed and possessing the necessary testamentary intention,
testamentary capacity, and knowledge and approval of the contents of
the will, it followed that I was also satisfied that the 23 February 2008
Will, the 25 May 2014 Will, and the 27 February 2017 Will were
validly revoked.
103 I did not consider that I needed to go further as to pronounce the
earlier wills as invalid and the plaintiff did not press for such an order.66
Conclusion and costs
104 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
63 Affidavit of SD Sokarch sworn on 23 April 2026, Attachment B, cl 5 and cl 6.
64 Plaintiff's outline of submissions filed on 21 May 2026, par 21.
65 In Re Levy (Deceased) (No 2) [1957] VR 662, 665.
66 See for example Lock v Phillips [2014] WASC 92.
-- 26 of 29 --
[2026] WASC 225
STRK J
Page 27
of the late Julianna Szakacs dated 13 April 2018 in solemn form of law.
I considered it to be proper and reasonable to do so in circumstances
where a compromise was reached by the parties to a contested action of
proof in solemn form.
105 As the named executor who had attained the age of 18 years, the
plaintiff moved for probate and after hearing from counsel as to the
form of order, it was ordered that a Registrar would issue a grant of
probate of the will of the late Julianna Szakacs dated 13 April 2018 in
solemn form in favour of Steven David Sokarch, with the terms of the
grant to be settled by a Registrar.
106 As to the caveats, both were lodged on 11 January 2024.67 As six
months had elapsed after their entry and no orders had been made
extending their operation, as at the date of trial both caveats had expired
and were of no effect.68 It was therefore not necessary in the
circumstances to make an order removing the caveats pursuant to the
Administration Act s 63(1).
107 Finally, I record that the plaintiff sought that there be no order as
to costs. Prior to trial the Court was informed by the defendants' legal
representative that the defendants did not seek to be heard with respect
to such an outcome.
67 CAV 5 of 2024 and CAV 6 of 2024.
68 Non-Contentious Probate Rules 1967 (WA) r 33(3).
-- 27 of 29 --
[2026] WASC 225
STRK J
Page 28
Sch A - Orders made on 4 June 2026
-- 28 of 29 --
[2026] WASC 225
STRK J
Page 29
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
4 JUNE 2026
-- 29 of 29 --