HOLLAND -v- GEORGATOS [2026] WASC 189

[2026] WASC 189 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS CITATION : HOLLAND -v- GEORGATOS [2026] WASC 189 CORAM : PALMER J HEARD : 14 MAY 2026 DELIVERED : 14 MAY 2026 FILE NO/S : CIV 1892 of 2022 BETWEEN : FENTON JEREMY HOLLAND Plaintiff AND GERASIMAS GEORGATOS First Defendant JENNIFER MARIE KAESHAGEN Second Defendant CARLO ANDREOLI Third Defendant JOHNSON BEYAN Fourth Defendant JUSTIN ROBERT HOLLAND BY GUARDIAN AD LITEM THE PUBLIC TRUSTEE OF WESTERN AUSTRALIA Fifth Defendant ZORIAN WIN HOLLAND BY GUARDIAN AD LITEM MARLAR WIN Sixth Defendant -- 1 of 14 -- [2026] WASC 189 Page 2 Catchwords: Wills - Probate - Proof in solemn form - Will properly executed - No evidence to displace the presumption that testator had testamentary capacity Legislation: Rules of the Supreme Court 1971 (WA) Wills Act 1970 (WA) Result: Pronouncement of the validity and force of the will dated 3 November 2021 in solemn form Category: B Representation: Counsel: Plaintiff : Mr R Squires First Defendant : No appearance Second Defendant : No appearance Third Defendant : No appearance Fourth Defendant : No appearance Fifth Defendant : No appearance Sixth Defendant : No appearance Solicitors: Plaintiff : Hotchkin Hanly First Defendant : No appearance Second Defendant : No appearance Third Defendant : No appearance Fourth Defendant : No appearance Fifth Defendant : No appearance Sixth Defendant : No appearance -- 2 of 14 -- [2026] WASC 189 Page 3 Case(s) referred to in decision(s): Allen v Quinn [2025] WASC 2 Donato v Mangravite, Estate of Donato [2005] NSWSC 488 Estate Kouvakis; Lucas v Konakas [2014] NSWSC 786 Fairclough v Cvitan [2019] WASC 370 Fisher v Kay [2010] WASCA 160 In the Estate of Kirs (1990) 55 SASR 61 In the Will of Wilson (1897) 23 VLR 197 Scattini v Matters [2004] QSC 459 Seeley v Back [2005] NSWSC 68 Timbury v Coffee [1941] HCA 22 (1941), 66 CLR 277 Veall v Veall [2015] VSCA 60 Wheatley v Edgar [2003] WASC 118 -- 3 of 14 -- [2026] WASC 189 PALMER J Page 4 PALMER J: Introduction 1 Ms Roberta Ashworth Holland (the Deceased), died on 21 December 2021, at the age of 84. These proceedings concern the validity of a will that she made, the month before she died, on 3 November 2021 (the November 2021 Will). 2 The November 2021 Will appointed the plaintiff and the first defendant, jointly and severally, as the executors and trustees of the Deceased’s estate. In these proceedings, the plaintiff seeks orders pronouncing the force and validity of the November 2021 Will and the grant of probate, in solemn form. 3 The other parties to these proceedings are the beneficiaries under the November 2021 Will. Following a settlement, all of them, other than the third defendant, consent to the relief sought by the plaintiff. The third defendant has not participated in the proceedings and he has disclaimed any interest in the Deceased's estate. 4 The trial proceeded on an undefended basis pursuant to O 73 r 19 of the Rules of the Supreme Court 1971 (WA). At the conclusion of the trial, I indicated that I would grant the relief sought and publish written reasons for doing so. These are those reasons. When probate will be granted in solemn form 5 Wills are proved in solemn form in a probate action where the sole question for the determination of the court is whether a will is, or is not, valid as a testamentary instrument. Wills can also be proved in common form where the will's validity is not contested. A grant in common form is revokable but a grant in solemn form is irrevocable (subject to some limited exceptions).1 6 Before a court may make a grant of probate in solemn form, the court must first be satisfied by evidence of the formal validity of the will and that the testator had the capacity to make a will at that time.2 7 Even where a matter has been settled and parties agree to abide by a decision of the court without contest, the court must still be 1 In the Estate of Kirs (1990) 55 SASR 61, 68 (Legoe J) quoted by EM Heenan J in Wheatley v Edgar [2003] WASC 118 (Wheatley) [17] - [18]. 2 Wheatley [24]. -- 4 of 14 -- [2026] WASC 189 PALMER J Page 5 independently satisfied by evidence to the requisite standard in order to grant probate in solemn form. The fact that the parties consent to how an estate should be administered is still a relevant consideration.3 8 Decisions in this court frequently refer to the decision of E M Heenan J in Wheatley v Edgar where his Honour explained the position as follows: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 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, r18 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. 9 In order to establish that proof of the will should be pronounced in solemn form, it is necessary for the propounding party to establish due execution of the will. 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.5 10 The formal requirements for the execution of a will are set out in s 8 of the Wills Act 1970 (WA) (Wills Act). That section provides that: 8. Execution generally 3 Wheatley [22], [24], [25] and [30]; Fairclough v Cvitan [2019] WASC 370 [25] - [26]. 4 Wheatley [26] - [27]. 5 Fisher v Kay [2010] WASCA 160 (Fisher v Kay) [85]. -- 5 of 14 -- [2026] WASC 189 PALMER J Page 6 Subject to sections 17 and 20 and Parts XA, X and XI, 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. 11 The test as to testamentary capacity has been summarised as follows:6 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. 12 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.7 13 The great age of a testator is a matter that normally suggests the need to exercise particular vigilance when considering testamentary incapacity but it does not follow that even a marked decline in a testator's intellectual capacity through advancing age establishes lack of testamentary capacity.8 14 Knowledge and approval of the contents of a will is the traditional language used to convey that the will represents the 6 In the Will of Wilson (1897) 23 VLR 197, 199; Timbury v Coffee [1941] HCA 22 (1941), 66 CLR 277, 283. 7 Allen v Quinn [2025] WASC 2 (Allen v Quinn) [21]. 8 Scattini v Matters [2004] QSC 459 [96]; Seeley v Back [2005] NSWSC 68 [20]; Donato v Mangravite, Estate of Donato [2005] NSWSC 488 [30]. -- 6 of 14 -- [2026] WASC 189 PALMER J Page 7 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.9 15 Testamentary intention is that the deceased intended the document they executed was to be their will. Where testamentary capacity and knowledge and approval are established, testamentary intention might also be expected to be established. However, whether testamentary intention has been established must still be assessed in all the circumstances.10 16 A party propounding a will may ordinarily rely on a number of presumptions. A presumption of due execution arises where a will is regular on its face and bears the signatures of a testator and two witnesses. Where a will has been duly executed, three presumptions arise: testamentary intention, testamentary capacity and knowledge and approval of the contents of the will. These presumptions may be displaced, however.11 The circumstances in which the plaintiff seeks the relief sought 17 In support of the relief sought, the plaintiff read affidavits sworn or affirmed by: (a) the plaintiff on 20 September 2022 and 8 May 2026 (the Holland Affidavit); (b) the first defendant on 11 November 2022 (the Georgatos Affidavit); (c) the second defendant on 10 October 2022 and 15 November 2022 ; (d) the fourth defendant on 11 October 2022 (the Beyan Affidavit); (e) Sanjiv Sethi on 13 April 2026 (the Sethi Affidavit); and (f) Sarah Evelyn Marmara on 24 October 2025 (the Marmara Affidavit). 9 Veall v Veall [2015] VSCA 60 [173]. 10 Allen v Quinn [24]. 11 Fisher v Kay [83] and [85]; Allen v Quinn [25]. -- 7 of 14 -- [2026] WASC 189 PALMER J Page 8 18 On the basis of that uncontested evidence, I make the following findings. 19 The Deceased died on 21 December 2021 at the age of 84 years of metastatic gallbladder cancer.12 20 On 20 March 2019, the Deceased executed a will bearing that date.13 21 On about 30 November 2020, the Deceased visited Mr Sethi’s office to prepare a new will.14 Mr Sethi is a legal practitioner who is the principal lawyer at Bargain Legal Pty Ltd which relevantly trades as ‘Wills Express’.15 22 On 29 December 2020, the Deceased executed a new will prepared by Mr Sethi.16 23 On 16 April 2021, the Deceased executed a further will prepared by Mr Sethi (the April 2021 Will).17 24 On or about 29 October 2021, the Deceased visited Mr Sethi at his office again and instructed him that she wished to amend the April 2021 Will.18 25 Mr Sethi took the Deceased instructions with no person other than her present. He had the April 2021 Will with him at the time.19 26 Mr Sethi then prepared a draft will which the Deceased reviewed and corrected, before he finalised it for execution.20 27 On 3 November 2021, the Deceased returned to Mr Sethi’s office to execute the will. The Deceased read and signed the will in the presence of his wife, Ms Priya Sethi. No other person was present.21 28 Before the Deceased executed the November 2021 Will, Mr Sethi asked her if she understood its contents and their implication and she told him that she did. He also asked her if she had been pressured or 12 Holland Affidavit [4], Attachment FJH-1, page 4. 13 Beyan Affidavit, Attachments JWB-2, pages 9 - 17. 14 Sethi Affidavit [7]. 15 Sethi Affidavit [1] - [2]. 16 Sethi Affidavit [6] - [7]; Beyan Affidavit, Attachment JWB-3, pages 18 - 26. 17 Sethi Affidavit [6] - [7]; Beyan Affidavit, Attachment JWB-4, pages 27 - 26. 18 Sethi Affidavit [8]. 19 Sethi Affidavit [9]. 20 Sethi Affidavit [11]. 21 Sethi Affidavit [12] - [14]. -- 8 of 14 -- [2026] WASC 189 PALMER J Page 9 forced to amend her will and she said she had not. She told him that she was executing the will of her own free will and was not under the influence of anyone.22 29 Throughout Mr Sethi’s dealings with the Deceased in October and November 2021, including when he took her instructions on 29 October 2021 and when the will was executed on 3 November 2021, Mr Sethi thought that the Deceased appeared to be mentally fit, in an alert state of mind, responsive and observant and he believed that she clearly understood what she was doing. He thought that she actively engaged in discussions regarding her instructions, as well as discussing other matters.23 30 The first defendant also regularly saw the Deceased (as his partner, the second defendant, was the Deceased’s carer). He regularly conversed with the Deceased and it did not appear to him that her mental capacity had diminished.24 31 The Deceased did not marry or divorce after making the November 2021 Will.25 32 In October 2024, the plaintiff and the fourth defendant entered into a Deed of Settlement and Release. By that deed, the fourth defendant disclaimed any interest in the Deceased’s estate and agreed to take no active part in these proceedings.26 33 On 5 August 2025, the plaintiff, first, second, fourth and fifth defendant entered into a Deed of Settlement and Beneficiary Arrangement by which those parties agreed, amongst other things, to resolve these proceedings.27 34 On 24 November 2025, the plaintiff and the third defendant executed a Deed of Disclaimer. By that deed, the third defendant renounced all gifts to him under the November 2021 Will and agreed to take no active part in these proceedings.28 22 Sethi Affidavit [15]. 23 Sethi Affidavit [16] - [18]. 24 Georgatos Affidavit [13] - [14]. 25 Holland Affidavit [10]. 26 Holland Affidavit [13], Attachment FJH-5, pages 18 - 27. 27 Marmara Affidavit, Attachment SEM-1, pages 4 - 31. 28 Holland Affidavit [14], Attachment FJH-6, pages 28 - 36. -- 9 of 14 -- [2026] WASC 189 PALMER J Page 10 Whether the orders sought should be made 35 The November 2021 Will satisfies the formal requirements of s 8 of the Wills Act. It is in writing, signed by the Deceased on each page (other than a cover page) and was witnessed by two witnesses who were present when she signed it. 36 As I have mentioned, where a will has been duly executed, testamentary intention, testamentary capacity and knowledge and approval of the contents of the will are presumed unless displaced. In my view, those presumptions have not been displaced in this case. 37 It is true that at the commencement of these proceedings the plaintiff claimed that the November 2021 Will was invalid and sought a pronouncement of the force and validity of the April 2021 Will. 38 Paragraph 14 of the statement of claim indorsed on the writ of summons alleged that the November 2021 Will was not validly made, and was not of lawful effect because, at the time the Deceased purported to make that will, she was not of sound mind, memory and understanding, in that she: (a) was unable to appreciate the nature and significance of the act of execution of the November 2021 Will; (b) was unable to understand the nature, extent and value of the estate over which she had power of disposal; (c) was unable to comprehend and appreciate the identity of those who might reasonably have a claim upon her bounty, and of the nature and extent of any such claims; (d) was unable to evaluate and to discriminate between the respective strengths of any such claims; and (e) was suffering from disorder of the mind which poisoned her affections, perverted her sense of right, or prevented the exercise of her natural faculties. 39 The particulars to paragraph 14 of the statement of claim stated that the Deceased lacked sound mind, memory and understanding by reason that: (a) in August 2020, she was diagnosed with metastatic gall bladder cancer with liver metastasis; -- 10 of 14 -- [2026] WASC 189 PALMER J Page 11 (b) she was, at times between October 2020 and her death on 21 December 2021, disoriented and confused; (c) on 16 April 2021, the Deceased executed an enduring power of attorney in favour of the plaintiff, which was not subsequently revoked at the time of the November 2021 Will; (d) at the time the Deceased purported to make the November 2021 Will, she: (i) was 84 years of age; (ii) was undergoing chemotherapy as treatment for her cancer, which she had been undertaking since October 2020; (iii) was infirm and emaciated; (iv) was very unwell and was aroused from bed to travel to her lawyer’s office for her appointment regarding the will; (v) was unable to drive to her lawyer’s office; (vi) was unable to walk without assistance; and (vii) did not change from her nightdress in order to travel to her lawyer’s office for her appointment regarding the will; (e) on 6 December 2021, the Deceased attended her oncology clinic without an appointment and abruptly ceased chemotherapy, without good reason; (f) on 18 December 2021, approximately 6 weeks after the date of the November 2021 Will, the Deceased suffered a grand mal seizure and was hospitalised; and (g) on 18 December 2021, the Deceased was observed to have multiple brain tumours, which would likely have impaired her cognitive ability at the time she purported to make the November 2021 Will. 40 Paragraph 15 of the statement of claim alleged, in the alternative, that the November 2021 Will was not validly made, and was not of -- 11 of 14 -- [2026] WASC 189 PALMER J Page 12 lawful effect because at the time the Deceased purported to execute it, she did not know and approve of its contents. 41 The particulars to paragraph 15 referred to paragraph 14 and alleged that the Deceased suffered such a level of cognitive impairment that she did not know or approve of the contents of the November 2021 Will. The particulars further stated that: (a) the November 2021 Will purported to dispose of the Deceased’s property at 12 Dumbarton Street, Menora to the plaintiff and the second defendant as joint tenants, contrary to the Deceased’s long held intention to gift the property to one of, or both of, her sons; (b) the Deceased did not understand that, by gifting 12 Dumbarton Street to the plaintiff and the second defendant as joint tenants, the second defendant would take ownership of the whole of the property by survivorship, if the plaintiff predeceased her; and (c) the Deceased did not understand that she did not have the power to appoint a guardian for the fifth defendant under her will. 42 The plaintiff has now withdrawn these allegations, however. On the 7 January 2026, the plaintiff filed a further amended statement of claim in which those allegations were deleted. The further amended statement of claim now pleads that the November 2021 Will was valid and seeks as relief, an order pronouncing its force and validity. 43 No evidence was led before me to substantiate any of the allegations made in the original statement of claim (other than the Deceased’s age and cancer diagnosis). 44 I do not consider that the mere making of an allegation in a pleading that is subsequently withdrawn and that has not been established by any evidence, is sufficient to displace the presumption. 45 While I must be independently satisfied by evidence to the requisite standard before I grant probate in solemn form, it does not follow that I must therefore adopt an inquisitorial approach and require the production of evidence that the parties have elected not to lead. In this regard, in Estate Kouvakis; Lucas v Konakas,29 Lindsay J observed: 29 Estate Kouvakis; Lucas v Konakas [2014] NSWSC 786 [251], [262] - [263]. -- 12 of 14 -- [2026] WASC 189 PALMER J Page 13 … 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. 46 There was no evidence before me to cast doubt on the Deceased’s mental capacity at the time that she made the November 2021 Will. What evidence there was, was consistent with her having capacity. 47 Mr Sethi’s evidence suggested that the Deceased had capacity, although given that he prepared the November 2021 Will, he might not be thought to be an entirely independent witness. He is also not a medical practitioner qualified to have fully assessed the Deceased’s mental capacity. That said, he would have been able to observe whether the Deceased attended his office in a nightdress, as alleged in the original statement of claim. He makes no mention of this in his affidavit. 48 Mr Sethi’s evidence was consistent with the first defendant’s assessment. 49 It is also relevant to note that the November 2021 Will has a similar structure and content to the April 2021 Will and makes a comprehensive disposition of the Deceased’s estate for those persons -- 13 of 14 -- [2026] WASC 189 PALMER J Page 14 who were the objects of her affection during her life. The November 2021 Will does not appear to be anything other than the product of a competent and understanding testator. 50 Given the due execution of the will therefore, the plaintiff was entitled to rely on the presumption that the Deceased had testamentary intention, testamentary capacity and knew of and approved of the contents of the November 2021 Will. Such a conclusion was also consistent with the evidence before me and I was satisfied of these matters. 51 The question was then whether I should grant probate in solemn form. I considered that such a grant was appropriate in light of the detailed allegations previously made by the plaintiff about the invalidity of the November 2021 Will. Even if those allegations were ultimately abandoned, I considered that the historical challenge to the validity of the will warranted the grant of probate in solemn form. Conclusion 52 For these reasons, I made the orders sought by the plaintiff. 53 The plaintiff also sought an order that his reasonable costs of the action, and any additional reasonable costs of and incidental to proving the November 2021 Will, be paid out of the Deceased’s estate on a solicitor and own client basis. I considered that this was an appropriate costs order in the circumstances of this case and made that order. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. SK Associate to the Hon. Justice Palmer 14 MAY 2026 -- 14 of 14 --