GROTH -v- GOYNICH [2025] WASC 356 (28 August 2025)

1. I now turn to the factual circumstances.
2. At trial, the plaintiff relied upon the affidavits of the plaintiff sworn 14 August 2024 and 4 July 2025 respectively and the affidavit of Mr Parker sworn 11 July 2025. Those affidavits were read and received at trial. The factual background and procedural history is outlined in the respective affidavits of the plaintiff. I am satisfied that the relevant facts as outlined are proven on the balance of probabilities.
3. On 23 February 2024, probate of the will of the deceased dated 14 September 2021 was granted to the executors of the estate by the court.
4. The executors engaged a law firm to apply for the grant of probate.[2]
5. The plaintiff deposes that she does not have a close relationship with either the first or second defendants but that at the time of the deceased's death she was aware that they had been appointed the executors of the deceased's estate. By the end of January 2024, the plaintiff had not heard from either of the executors in respect to the administration of the deceased's estate. Accordingly, on 14 February 2024, the plaintiff forwarded letters to the first and second defendants, stating that they were not properly undertaking the role of executors.[3]
6. On 6 March 2024, the plaintiff received an email from the first defendant stating that the plaintiff should contact the first defendant's lawyer in relation to the administration of the estate.[4]
7. Accordingly, the plaintiff sent an email to the lawyer on 15 May 2024 querying in respect to the progress of the administration of the estate. Having not received a response to that email, a further email was sent by the plaintiff to the first defendant's lawyer on 21 May 2024.
8. On 24 May 2024, the plaintiff received an email from the lawyer who stated that she would need to consult with her client. However, the plaintiff did not receive any further information.[5]
9. On 5 June 2024, the plaintiff sent a further email to the lawyer to ascertain the first defendant's position.
10. On 12 June 2024, the plaintiff received an email from the lawyer which relevantly informed the plaintiff that the legal firm had ceased acting for the first defendant.[6] Therefore, the plaintiff sent a further email to the first defendant on 13 June 2024 requesting from her a copy of the will and financial statements of the estate.[7]
11. Given that the plaintiff received no response, she engaged the law firm Arns & Associates. On 3 July 2024, Arns & Associates sent a letter to the executors requesting information relevant to the administration of the estate. Neither the first defendant nor the second defendant responded to the letter.[8]
12. On 5 September 2024, the court issued a Notice to the first and second defendants to pass the accounts of the estate in accordance with r 37 of the Non-Contentious Probate Rules 1967 (WA). The Notice required that the executors file an up to date accounts and a plan for the distribution of the estate by 3 October 2024. On 4 December 2024, the time for compliance with the Notice issued on 5 September 2024 was extended to 17 January 2025. The executors did not comply with the Notice.
13. By letter dated 24 January 2025, the plaintiff's solicitors applied for the issue of a Citation.
14. On 26 February 2025, the court, on the application of the plaintiff, issued a Citation directed to the first and second defendants requiring that within 21 days of service of the Citation, they bring in and leave with the court registry the grant of probate in order that the plaintiff may proceed with the revocation of the grant. The first and second defendants complied with the Citation with the grant of probate returned to the court.
15. The assets of the estate as disclosed in the Statement of Assets and Liabilities comprise, in part, a refundable accommodation deposit of $950,000 held by Rosewood Nursing Home. In addition, there are two bank accounts with a combined balance of about $607,000.
16. In an email dated 24 March 2025, Rosewood Nursing Home informed Arns & Associates that if the refundable accommodation deposit of $950,000 plus accumulated interest had not been claimed by the estate by 23 December 2025, Rosewood Nursing Home would be seeking to send the funds to the 'unclaimed Department of Treasury'.[9]
17. The plaintiff deposes that if the court determines that the probate of the will should be revoked, then she requests that Mr Parker be appointed as the administrator of the estate. The plaintiff deposes that Mr Parker was a close friend of the deceased and that she considers that because of his close connection to the family and his experience as an accountant, he is both suitable and qualified to undertake the role on behalf of the estate.
18. Mr Kimberley Parker, in his affidavit sworn 11 July 2025, deposes that he is a friend of the deceased and that, through that friendship, he has a close connection with the deceased's family. Mr Parker deposes that by profession he was an accountant for 45 years and that he served as a Justice of the Peace in Western Australia for 31 years. Mr Parker further deposes that if appointed as the administrator of the estate, he will promptly administer the estate according to the terms of the will of the deceased.

1. The application for revocation of the grant of probate is made in reliance upon the court's jurisdiction under s 18 of the Supreme Court Act 1935 (WA) or in its inherent jurisdiction. The court has a broad jurisdiction in probate matters under s 18 of the Supreme Court Act, including the power to revoke a grant of probate to an executor and thereby remove the executor.
2. The nature of the court's jurisdiction under s 18 of the Supreme Court Act was outlined by the Court of Appeal in Cardaci v Cardaci[10] and by EM Heenan J in the Estate of Rogers v Rogers.[11] There is a wide variety of circumstances under which revocation of a grant of probate or letters of administration may be made. Broadly, the circumstances may be divided into two categories. First, where there has been error which has been made in the grant, or where the particular grant should not have been made. Second, revocations made necessary or desirable to ensure the due administration of the estate.[12]
3. The purpose of the court's power of revocation is to ensure the due and proper administration of the estate and of the interest of the beneficiaries.
4. One of the instances where revocation may be appropriate is where the grantee has persistently neglected or refused to carry out due administration of the estate. However, whilst misconduct by the grantee of probate is sometimes a basis for removal, proof of actual misconduct is not required, and each case depends on the facts. It is a matter of what is best for the welfare of the beneficiaries and of the estate as a whole.
5. Illustrations of circumstance where it has been held appropriate to pass over a named executor, or to remove an executor, were referred to by Pritchard J in Woodley v Woodley [No 2].[13] Her Honour stated that the circumstances referred to are not exhaustive, observing that there are no limits to the ground upon which an applicant for probate may be passed over and every case must depend upon its facts and on its own merits.[14]
6. EM Heenan J in the Estate of Rogers v Rogers referred to the need for caution in the exercise of the power, stating:[15]

It must, of course, be acknowledged that the removal of a grantee of representation is a very major step, even more so where it involves the removal of an executor who must be taken to have been chosen by the testator as the person considered suitable to perform the task of administration and the person most desired by the testator to perform that role. For these reasons, the court must always be very cautious and sparing in the exercise of this power. This accounts for the reluctance shown in the cases to make such orders too readily or, in a case of an incumbent executor or administrator who wishes to carry on, without allowing that incumbent an opportunity to repair or remedy any defects and progress promptly with due administration[.] (citation omitted)

1. These considerations apply equally to the appointment of a replacement for an executor following revocation of the initial appointment.[16]
2. In considering the appropriate replacement, the following factors are of particular relevance:[17]

(a) the wishes of the beneficiaries;

(b) the replacement should not be appointed with a view to promoting the interests of some of the beneficiaries in opposition to the interests of other beneficiaries;

(c) the court should be concerned to avoid appointing, as a replacement, a person or party who might have a potential conflict of interest; and

(d) in identifying the appropriate replacement, the court should have regard to whether the appointment would promote or impede the due and proper administration of the estate.

1. Having regard to the affidavit material before the court, I am satisfied that an order should be made to revoke the grant of probate made to the first and second defendants. I am satisfied that the order should be made because the affidavit material establishes that the first and second defendants have not duly administered the estate. The first and second defendants have not collected in the real and personal assets of the deceased and administered them according to law.
2. The first and second defendants have failed to respond to the reasonable written requests of the plaintiff and the plaintiff's solicitors for information concerning the due administration of the estate. Further, the first and second defendants failed to comply with the court order for the passing of accounts made on 5 September 2024.
3. I am mindful that Rosewood Nursing Home informed Arns & Associates that if the refundable accommodation deposit of $950,000 plus accumulated interest had not been claimed by the estate by 23 December 2025, Rosewood would be seeking to send the funds to the 'unclaimed Department of Treasury'.
4. I am satisfied, in the circumstances, that the first and second defendants are not fit to continue as executors and trustees of the estate. Therefore, the grant of probate should be revoked and the two executors should cease to act.
5. I am satisfied that an order be made that Mr Parker should be appointed the administrator of the estate with the will annexed. Mr Parker has the professional and personal background to undertake the administration of the estate promptly according to law. The appropriate form for the appointment of the replacement is the grant of letters of administration with the will annexed.[18] By annexing the will, I make it clear that the administrator's task is to give effect to the terms of the will and administer the estate according to its terms.

1. The plaintiff seeks an order that the first defendant pay the costs of the plaintiff on an indemnity basis out of the estate in respect of all costs incurred by her or incidental to Probate Proceedings PRO 1201 of 2024 and Supreme Court Action CIV 1472 of 2025, and this application. The costs are to be taxed on the basis that the plaintiff is entitled to all costs claimed except in so far as they have been unreasonably incurred or are of an unreasonable amount, so that subject to those exceptions the plaintiff is indemnified.
2. The basis for the application for indemnity costs is that the conduct of the first defendant has been unreasonable in all of the circumstances, and such conduct warrants an order for indemnity costs as a sanction of the court's disapproval for that unreasonable conduct. I propose to make an indemnity costs order.
3. Further, the costs order should be paid from the estate and deducted from the first defendant's entitlement to receive her interest in respect of the estate. In making that order I am mindful that the first defendant was the primary executor with whom the plaintiff exchanged correspondence. Further, the first defendant instructed solicitors to administer the Estate who subsequently ceased to act. The second defendant is not a beneficiary.
4. A copy of the orders should be served on the first, second and third defendants. If the first defendant had filed an Appearance, I would have considered making an order that the plaintiff's bill of costs should be served on the first defendant. The first defendant has not done so.
5. For these reasons, at the conclusion of trial I made the following orders:

(1) The grant of probate in the estate of Milton Goynich (Deceased) of 5 Britannia Road, Leederville, Western Australia, made to Leanne Goynich (First Defendant) and Robert Alexander Goynich (Second Defendant) on 23 February 2024 be revoked.

(2) The probate registrar be directed to issue a grant of letters of administration, with the will of the Deceased dated 14 September 2021 annexed, to Kimberley Parker (New Executor) of 559A Walter Road East, Bayswater, Western Australia, with the terms of the grant to be settled by the probate registrar.

(3) Within 14 days of being served with a copy of the letters of administration, the First and Second Defendants must do all such acts as are necessary to transfer, or transfer control of, any property of the estate of the Deceased (Estate) to the New Executor.

(4) Subject to Order 5, within 14 days of being served with a copy of the letters of administration the First and Second Defendants are to deliver to the New Executor all papers, documents, accounts, receipts and other records relating to the Estate.

(5) The Plaintiff is entitled to an indemnity out of the Estate in respect of all costs incurred by her of or incidental to Probate Proceedings PRO 1201 of 2024 and Supreme Court Action CIV 1472 of 2025 (including the costs of this application and the costs of the taxation).

(6) The costs in Order 5 are to be taxed on the basis that the Plaintiff is entitled to all of the costs claimed, except in so far as they have been unreasonably incurred or are of an unreasonable amount, so that subject to those exceptions the Plaintiff is completely indemnified for her costs.

(7) The costs in Order 5 are to be paid from the Estate and deducted from the First Defendant's entitlement to receive her interest in respect of that Estate.

(8) A copy of these Orders are to be served by the Plaintiff on the First, Second and Third Defendants. The service may be effected by:

(a) The Plaintiff emailing a copy of the Order to the known respective email addresses of the First, Second and Third Defendants; and

(b) The Plaintiff causing a copy of the Order to be left in a prominent place at the known residential addresses of the First, Second and Third Defendants.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Affidavit of Ms Groth sworn 4 July 2025, Annexure CG-1.

[3] Affidavit of Ms Groth sworn 4 July 2025, Annexure CG2.

[4] Affidavit of Ms Groth sworn 4 July 2025, Annexure CG-3.

[5] Affidavit of Ms Groth sworn 4 July 2025, Annexure CG-6.

[6] Affidavit of Ms Groth sworn 4 July 2025, Annexure CG-8.

[7] Affidavit of Ms Groth sworn 4 July 2025, Annexure CG-9.

[8] Affidavit of Ms Groth sworn 4 July 2025, Annexure CG-10.

[9] Affidavit of Ms Groth sworn 4 July 2025, Annexure CG-13.

[10] Cardaci v Cardaci [2023] WASCA 158 [541] - [546].

[11] Estate of Rogers v Rogers [2009] WASC 358.

[12] Estate of Rogers v Rogers [2009] WASC 358 [23].

[13] Woodley v Woodley [No 2] [2017] WASC 94.

[14] Woodley v Woodley [No 2] [2017] WASC 94 [43] - [47].

[15] Estate of Rogers v Rogers [2009] WASC 358 [32].

[16] Nicholl v Mattingly [2025] WASC 297 [27].

[17] Nicholl v Mattingly [2025] WASC 297 [28].

[18] Nicholl v Mattingly [2025] WASC 297 [46].