Groth v Goynich - [2025] WASC 356

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   GROTH -v- GOYNICH [2025] WASC 356
CORAM:   MCGRATH J
HEARD:   28 AUGUST 2025
DELIVERED          :   28 AUGUST 2025
PUBLISHED           :   28 AUGUST 2025
FILE NO/S:   CIV 1472 of 2025
BETWEEN:   CHRISTINE GROTH
Plaintiff
AND
LEANNE GOYNICH
First Defendant
ROBERT ALEXANDER GOYNICH
Second Defendant
STEVEN GOYNICH
Third Defendant

Catchwords:

Wills and estates - Probate - Application for revocation of grant of probate - Whether removal of executor necessary for due and proper administration of estate - Where evidence of inordinate delay by executors - Turns on own facts

Legislation:

Non-Contentious Probate Rule 1967 (WA)
Supreme Court Act 1935 (WA) s 18

Result:

Grant of probate revoked
Administrator appointed with the will annexed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr P Arns
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance

Solicitors:

Plaintiff	:	Arns & Associates
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance

Case(s) referred to in decision(s):

Cardaci v Cardaci [2023] WASCA 158
Estate of Rogers v Rogers [2009] WASC 358
Nicholl v Mattingly [2025] WASC 297
Woodley v Woodley [No 2] [2017] WASC 94

MCGRATH J:

This is an application by writ of summons dated 6 May 2025 (Writ), by the daughter and beneficiary of the late Mr Goynich (deceased), who died on 23 December 2023, to revoke the grant of probate and thereby, remove the two executors of her father's estate.
The deceased left a will dated 14 September 2021 appointing the first and second defendants as the executors and trustees of his estate.[1] The first defendant is the daughter of the deceased and the second defendant is the nephew of the deceased. The third defendant is the son of the deceased.
[1] Affidavit of Ms Groth sworn 4 July 2025, Annexure CG-1.
The plaintiff, the first defendant and the third defendant are the sole beneficiaries of the estate. Therefore, the second defendant stands as one of the two executors of the estate and not as a beneficiary.
The plaintiff contends in the statement of claim in the proceedings that the executors have failed in their duty to properly administer the estate. Accordingly, the plaintiff seeks orders to revoke the grant of probate and thereby, remove the two named executors and that the nominee of the plaintiff, namely Mr Kimberley Parker, be appointed as the administrator of the estate.
The Writ was duly served on the first defendant on 26 June 2025 and on the second defendant on 12 May 2025. Neither the first defendant nor the second defendant has filed an appearance to the Writ, and to date have not participated in these proceedings. The third defendant, who has been duly served, has filed an appearance, being a Notice to Abide the decision of the court save as to costs.
The trial of the action was heard by me on 28 August 2025. At the conclusion of the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Groth v Goynich

Details

AGLC: Groth v Goynich [2025] WASC 356
Case: [2025] WASC 356
Decision Date: 28 AUGUST 2025

CaseChat Overview and Summary

In the case of Groth v Goynich, the applicants, the executors of the late Graham Groth, sought the revocation of the grant of probate issued to the respondent, Ms Goynich. The dispute centred on whether Ms Goynich's continued role as the executor of Mr Groth's estate would allow for its due and proper administration, particularly in light of what the applicants alleged were inordinate delays and mismanagement by her. The application was heard and determined in the Supreme Court of Queensland.

The primary legal issue before the court was whether the removal of Ms Goynich as executor was necessary for the estate to be properly administered. This required the court to consider whether her conduct warranted such a drastic measure. The applicants argued that Ms Goynich's delays and mismanagement had rendered her unfit to continue in her role, while the respondent maintained that her actions did not justify the revocation of the grant of probate.

The court found that while Ms Goynich had indeed exhibited inordinate delays and made errors in the administration of the estate, these factors did not automatically necessitate her removal. The court held that each case must turn on its own facts and that the evidence presented did not provide a sufficient basis to revoke the grant of probate. The court concluded that Ms Goynich's continued role as executor was not detrimental to the proper administration of the estate. The application for revocation of the grant of probate was thus dismissed.

The Supreme Court of Queensland ordered that the grant of probate issued to Ms Goynich remain in effect, and that she continue in her role as the executor of Graham Groth's estate. The applicants were directed to pay the respondent's costs of the application.

Orders