MCCULLOUGH -v- HAIGH AS EXECUTOR [2025] WASC 352 (28 August 2025)

1. Counsel for Ms McCullough filed submissions on 19 August 2025 (Submissions), as well as two more affidavits from Ms McCullough. The net result is that Ms McCullough relies on four substantive affidavits:[4]

(a) Ms McCullough's affidavit sworn 16 February 2024 in the probate proceedings (First McCullough Affidavit);[5]

(b) Ms McCullough's affidavit sworn 12 March 2025 in the probate proceedings (Second McCullough Affidavit);[6]

(c) the Third McCullough Affidavit; and

(d) the Affidavit of Scripts.

1. For the reasons which follow, Ms McCullough is entitled to orders along the lines sought in the Writ.

1. The original of the Will is held in the probate registry of the court. In the Affidavit of Scripts, Ms McCullough deposes that to the best of her knowledge and belief, the Will is the only testamentary instrument in existence.
2. To the best of the knowledge of Ms McCullough, the Estate comprises:

(a) a bank account with a balance of $9,942.33;

(b) a Holden vehicle with a value of $1,700; and

(c) a property in Kambalda, with a value of $220,000 (Property).

Ms McCullough deposes that she believes that the Deceased has superannuation monies. The Estate appears to have liabilities in the order of $3,000.[7]

1. On the application of Ms McCullough, on 21 February 2024 the court issued Ms Haigh with Citation 9 of 2024 to propound the Will. Ms Haigh was served with Citation 9 of 2024 on 16 March 2024.[8]
2. Ms Haigh did not answer the citation. Accordingly, on 15 April 2024, Ms McCullough filed an application for letters of administration.[9] Ms Haigh filed a document objecting to the appointment of Ms McCullough. The court granted Ms Haigh a further 16 days to file an application for probate.[10]
3. As mentioned, on 23 May 2024 the court issued the Grant to Ms Haigh.
4. Ms McCullough deposes that despite receiving the Grant and various inquiries made with Ms Haigh, Ms Haigh has failed to adequate steps to administer the estate.[11]
5. Upon the application by Ms McCullough, the court issued Citation 5 of 2025 dated 2 April 2025 to Ms Haigh. This citation informed Ms Haigh that Ms McCullough intended to commence an action for the revocation of the Grant and requiring her to bring the original of the Grant to the probate register within 21 days of service. Ms Haigh did not comply with this time limit.[12] My inquiries with the probate registry reveal that to date, the original Grant has not been delivered up to the court.
6. Ms McCullough then deposes:[13]

There still has been no distributions made by the first defendant to the beneficiaries and the estate remains wholly unadministered.

I have not received information or property of any of my late father's personal possessions (sentimental or valuables) from the first defendant nor has any amount of estate information including an account for rent monies, costs for works on the real property, home loans and credit cards, disposal of assets such as motor vehicle and chattels, superannuation accounts, death benefits and estate bank accounts been provided by the first defendant.

There is no sign that the first defendant has taken any steps to sell the property.

1. Finally, Ms McCullough deposes that if appointed administrator of the Estate she will administer the Estate according to law.[14]
2. Counsel for Ms McCullough submits that despite requests made by Ms McCullough and through her solicitor, Ms Haigh has:[15]

(a) delayed for over 30 months in applying for probate despite a citation being issued;[16]

(b) intermeddled in the estate by renting out the property without proper authority or accounting to beneficiaries;[17]

(c) failed to account for rent, the vehicle, home loans, credit cards, chattels, works on the Property, superannuation and death benefits and estate bank accounts;[18]

(d) failed to respond to repeated reasonable requests for information and failed to engage in correspondence with the beneficiaries;[19]

(e) not made any distributions to the beneficiaries;

(f) not taken steps to get in, make ready for sale, and sell the estate property;[20] and

(g) failed to comply with both citations issued by the court.[21]

1. I accept Ms McCullough's evidence and find the facts set out in the introduction and this part, including par [18], proven on the balance of probabilities.

1. Administration Act 1903 (WA) (AA) s 29(1) contains a wide power to revoke the 'administration of an estate' in the following terms:

Where administration of the estate of a person has been granted the Court may, at any time, upon the application of any person interested in the estate or of its own motion on the report of the Principal Registrar, revoke the administration.

1. However, it is an open issue as to whether or not the power in AA s 29(1) is confined to grants of letters of administration, or includes grants of probate.[22] That being so, it is sufficient in this case to rely on the ample power of the court to revoke a grant of probate and appoint a replacement pursuant to Supreme Court Act 1935 (WA) s 18 or the inherent jurisdiction of the court.[23] The revocation of a grant of probate is equivalent to the setting aside of a court order so the power to do so is not exercised as of course or as of right.[24]
2. The ultimate purpose of the court's power of revocation is to ensure the due and proper administration of the estate and of the interests of the beneficiaries. The power may be exercised where it is necessary for the due administration of the estate. The court seeks to identify what is best for the welfare of the beneficiaries and of the estate as a whole.[25] The court will, however, 'be very cautious and sparing' in the exercise of this power.[26]
3. One well established class of case in which it will be necessary for the due administration of an estate to revoke a grant of probate or administration is where the grantee has persistently neglected or refused to administer the estate.[27]
4. In my view, the evidence summarised at [18] leads me to readily find that Ms Haigh has persistently neglected or refused to administer the Estate. Her failure to comply with the direction of the court to return the Grant is particularly telling.[28] This is not a case in which the incumbent executor has made some effort, wishes to carry on and should be given an opportunity to repair or remedy any defects and progress promptly with due administration.[29] Even on a very cautious and sparing exercise of the power to revoke, this is an appropriate case in which to do so.

4. Should Ms McCullough be appointed as administrator?

1. The considerations which I have set out at [22] apply equally to the appointment of a replacement for an executor following revocation of the initial appointment.[30] In addition, in considering the identity of the replacement:[31]

(a) the wishes of the beneficiaries are relevant;

(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. As to the wishes of the beneficiaries, both Ms Haigh and Mr Wickers have had an opportunity to object to the appointment of Ms McCullough, but have declined to do so, the former by taking no part in the action and the latter by abiding the decision of the court.
2. Looking at the all the material before the court, in my view, Ms McCullough has diligently, competently and responsibly sought to address her concerns as to how the Estate has been (or not been) managed. This includes the appropriate use of lawyers. I have no doubt that this approach would continue if she was appointed. She should be appointed to replace Ms Haigh.
3. The appropriate form for the appointment of the replacement is the grant of letters of administration with the will attached.[32]

1. There will need to be an order that Ms Haigh deliver to the Probate Registry the original Grant for cancellation. Further non‑compliance will be unacceptable and, if necessary, the court can invoke its contempt jurisdiction to ensure compliance. To facilitate compliance, there should be an order requiring Ms McCullough to personally serve a copy of the orders, and this decision, on Ms Haigh. This material should also be personally served on Mr Wickers so he knows what has transpired.
2. Ms McCullough has sought orders that:

(a) Ms Haigh make and file an affidavit describing her administration of the Estate, identifying assets which remain unadministered or under her control, and annexing all papers, documents, accounts, receipts and other documents relating to estate assets; and

(b) Ms Haigh appear before a registrar at a date to be fixed for examination on oath by or at the instance of Ms McCullough to answer questions about the nature and extent of her administration and the location of unadministered assets or documents relating to them.

Each of these orders is routine in a case like the present one[33] and should be made. However, to assist with the efficient administration of the Estate, there should be more specific orders in relation to the Property. I add that there should be an order that Ms Haigh transfer any property she controls to her replacement.

(a) an account on a wilful default basis be taken of all of the dealings and transactions of Ms Haigh as executor of the Estate; and

(b) an order that upon the taking of an account, Ms Haigh pay such sum as is found to be owing to the estate including interest on said sum.

The evidence at this stage does not support these orders. However, it may do once the examination of Ms Haigh occurs. The appropriate course is to adjourn the balance of the action sine die, with liberty to Ms McCullough to apply to have it relisted.

1. Finally, as to costs, Ms McCullough seeks an order that Ms Haigh pay her costs of the action without recourse to an indemnity from the Estate. I agree. The action was only necessary because Ms Haigh persistently neglected or refused to administer the Estate. Costs should follow the event. Those costs should be taxed on a solicitor and client basis and paid within 14 days of being taxed.
2. I will then give Ms McCullough and any party who has filed a memorandum of appearance liberty to apply as to the future administration of the Estate.
3. Accordingly, the following orders are appropriate:

1. The plaintiff personally serve a copy of these orders and the decision MCCULLOUGH -v- HAIGH [2025] WASC 352 on each defendant. 2. The grant of probate in the estate of William Gary Wickers (Deceased) late of 4 Blackbutt Street, Kambalda East, Western Australia, made to Deborah Anne Haigh (Former Executor) on 23 May 2024 be revoked. 3. Within 7 days of service of this order, the Former Executor deliver to the Probate Registry of this court the original grant of probate for cancellation. 4. The probate registrar be directed to issue a grant of letters of administration, with the will of the Deceased dated 25 October 2006 annexed, to Cherie Daniella McCullough of xxx, Landsdale Western Australia (New Administrator), with the terms of the grant to be settled by the probate registrar. 5. Within 14 days of being personally served with a copy of the letters of administration, the Former Executor 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 Administrator. 6. Within 14 days of being personally served with a copy of the letters of administration, the Former Executor make and file an affidavit describing her administration of the Estate, identifying assets which remain unadministered or under her control, and annexing all papers, documents, accounts, receipts and other documents relating to estate assets, including a copy of:

(a) all documents recording or evidencing money received by way of rent or otherwise in relation to the property at 4 Blackbutt Street, Kambalda East, Western Australia; and
>
> (b) all documents recording or evidencing any superannuation account held by the Deceased; and
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> (c) all bank statements in her possession for Commonwealth Bank account BSB 066 514, account 1028xxxx.

1. The Old Executor must appear before a registrar at a date to be fixed for examination on oath by or at the instance of the New Administrator to answer questions about the nature and extent of her administration and the location of unadministered assets or documents relating to them. 2. Administrator's (plaintiff's) costs of the action to date to taxed on a solicitor and client basis and paid within 14 days of the certificate of taxation being signed. 3. The New Administrator and any defendant who has filed, or in the future files, a memorandum of appearance has liberty to apply as to the administration of the Estate. 4. The balance of the action be adjourned sine die, with liberty to any party to have it relisted for directions.

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

[1] A copy of the Will is Annexure A to the Affidavit of Scripts of Cherie Daniella McCullough, sworn 15 August 2025 (Affidavit of Scripts).

[2] A copy of Ms McCullough's birth certificate and change of gender orders is attachment CM-8 to her affidavit of 15 August 2025 (Third McCullough Affidavit).

[3] Affidavit of Service of Carol Eaton, sworn 23 June 2025.

[4] In addition to the affidavits of service which have been filed.

[5] Annexure CM-1 to the Third McCullough Affidavit.

[6] Also in annexure CM-2 to the Third McCullough Affidavit.

[7] Third McCullough Affidavit, pars 17 - 19.

[8] Third McCullough Affidavit, pars 3 and 4, Annexure CM-4.

[10] Third McCullough Affidavit, par 6, attachment CM-3.

[11] Third McCullough Affidavit, par 5.

[12] Third McCullough Affidavit, pars 9 - 12, annexures CM-4, CM-5.

[13] Third McCullough Affidavit, pars 14 - 16.

[14] Third McCullough Affidavit, par 22.

[16] Third McCullough Affidavit, annexure CM-1, par 8(2).

[17] Third McCullough Affidavit, annexure CM-1, par 8(3).

[18] Third McCullough Affidavit, par 15.

[19] Third McCullough Affidavit, par 15.

[20] Third McCullough Affidavit, par 16 and annexure CM-6, par 12(2).

[21] Third McCullough Affidavit, pars 7 - 12.

[22] Rogers v Rogers [2009] WASC 358 [16] (EM Heenan J) (Rogers).

[23] Nicholl v Mattingly [2025] WASC 297 [23] (Gething J) (Nicholl); Re Banning; Ex Parte Banning [2018] WASC 313 [33] (Vaughan J) (Banning); Smith v Partridge [2018] WASC 128 [25] (Pritchard J) (Smith) [26]; Rogers [22] - [23]; Porteous v Rinehart [1998] WASC 270; (1998) 19 WAR 495, 505 - 506 (White J).

[25] Nicholl [27]; Wood v Wood [No 4] [2014] WASC 393 [174] - [175] (Kenneth Martin J); Banning [34], [37]; Smith [26] - [27], [38]; Rogers [23].

[26] Nicholl [27]; Rogers [32]; Banning [34].

[27] Smith [27], [37]; Rogers [25] - [31].

[30] Nicholl [27]; Walter v Hasslinger [2022] VSC 460 [31] (Kaye JA) (Walter).

[31] Nicholl [28]; Walter [31]; Hancock v Rinehart [2015] NSWSC 646; (2015) 106 ACSR 207 [120] - [124] (Brereton J); Grey v Youngson [2006] WASC 123 [50] - [51] (Hasluck J).

[32] Nicholl [46]; Smith [51] - [52].

[33] See for example: Evans [37] - [39].