Grove v Simon DIRK Kenworthy-Groen as executor of the estate of William Grove

[2021] WASC 70

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   GROVE -v- SIMON DIRK KENWORTHY-GROEN as executor of the estate of WILLIAM GROVE [2021] WASC 70

CORAM:   MASTER SANDERSON

HEARD:   19 FEBRUARY 2021

DELIVERED          :   15 MARCH 2021

PUBLISHED           :   15 MARCH 2021

FILE NO/S:   CIV 1971 of 2020

BETWEEN:   JOHN WILLEM GROVE

Plaintiff

AND

SIMON DIRK KENWORTHY-GROEN as executor of the estate of WILLIAM GROVE

Defendant

Catchwords:

Practice and procedure - Application for pre-discovery - Turns on own facts

Legislation:

Nil

Result:

Discovery ordered

Category:    B

Representation:

Counsel:

Plaintiff	:	PDC Robinson
Defendant	:	LA Tsaknis

Solicitors:

Plaintiff	:	Williams & Hughes
Defendant	:	Fort Knox Legal

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

GLR Injection Technologies Pty Ltd v Forton Automotive Treatments Pty Ltd [2009] WASC 131

MASTER SANDERSON:

1. This is an application for pre‑action discovery by originating summons filed 22 September 2020.  The plaintiff seeks pre‑action discovery from the defendant in his capacity as executor of the estate of the late William Grove.  It is convenient if I refer to the parties by their Christian names.  In doing so I mean no offence. 

2. Simon was appointed executor under William's will which was dated 11 September 2015.[1]  William died on 30 October 2015.[2]  Probate of William's will was granted to Simon on 8 February 2016.[3]  One of the beneficiaries under William's will was Andrew Grove.  Andrew is the son of William and the brother of both John and Simon. 

   [1] Affidavit of John Willem Grove sworn 10 September 2020; Annexure JWG2 (page 12).

   [2] Affidavit of John Willem Grove sworn 10 September 2020 [5].

   [3] Affidavit of John Willem Grove sworn 10 September 2020 [7].

3. John makes this application on the basis he may have a cause of action against Andrew.  John's claim is that Andrew exerted undue influence on William and for that reason the will may be invalid.[4]  I will deal more fully with the reasons John advances in seeking to establish he may have a claim.  But at this point it is convenient to set out details of the documents John would have Simon discover.  They are found in the schedule to the originating summons.  They are:

   1. Two 'earlier wills' prepared by the late William Grove in 2015 referred to in the letter from Fort Knox Legal to Williams + Hughes dated 30 June 2020.

   2. Wills, memoranda of wishes or statements of testamentary intention, whether signed, unsigned, executed, draft, interim final or however described, prepared by the late William Grove or his solicitors in 2015.

   [4] Affidavit of John Willem Grove sworn 10 September 2020 [14] – [28]

4. Three observations can be made about these documents.  First, it would not be onerous for Simon to discover the documents in category 1.  Correspondence passing between the plaintiff's solicitors and the defendant's solicitors has established that there are two 'earlier wills' and they are in possession of the defendant's solicitors.  The documents in category 2 are somewhat more problematic.  Discovery of those documents may involve some work in trawling through solicitor's notes found in the relevant files.  But overall, providing discovery of both categories does not seem to be unduly burdensome. 

5. Second, it is difficult to see how either category would not be the subject of legal professional privilege.  During the course of the hearing on 19 February 2021 there was some debate about whether the two 'earlier wills' would be privileged.  Counsel for the defendant reserved his position on that question.  But it is almost certain all of the documents referred to in category 2 would be the subject of a claim for privilege.  Of course the fact there may be a claim for privilege over any or all of the documents is not in and of itself a reason for not making an order.  After all, a discovery order requires that the defendant provide an affidavit of discovery.  In the usual course, that document would include a claim for privilege if privilege is maintained.  There may be then an argument as to whether or not the privilege is properly claimed.  But the defendant did not submit that the fact there was a real prospect that both categories would be subject of a claim for privilege was a basis for refusing the order. 

6. Third, if the two 'earlier wills' were made available to John and these two wills showed he would have had no greater interest in William's estate than he has under the will admitted to probate then there would be little utility in issuing proceedings,  Counsel for John offered one caveat to that position.  He pointed out that if, under an earlier will, John was executor of William's estate either instead of or in conjunction with Simon, then an action to revoke the current grant might be appropriate.  Either way, it is clear if discovery was ordered of the two 'earlier wills' John would have a clear idea of whether an action was worth taking and what the outcome of that action might be - always assuming, of course, that a claim for privilege was either not maintained or was found not to be sustainable. 

7. There was no dispute between the parties as to the applicable legal principles.  The plaintiff relied on the decision of this court in GLR Injection Technologies Pty Ltd v Forton Automotive Treatments Pty Ltd [2009] WASC 131. It is unnecessary for me to restate the principles. What was at issue between the parties here is whether John 'may have a cause of action'. It was to that question the affidavit material filed by the parties was directed.

8. John's application was supported by an affidavit he swore on 10 September 2020 and by an affidavit of Kerry Anne Grove sworn 7 September 2020.  Dealing first with John's affidavit, he says that in 2012 William was diagnosed with gastric cancer.[5]  At the time he was 86 years of age.  William refused conventional chemotherapy, preferring instead to visit a naturopath.  Perhaps not surprisingly, during 2014 William began suffering from abnormal liver function and his condition gradually worsened into 2015. 

   [5] Affidavit of John William Grove sworn 10 September 2020 [21].

9. In about early 2015, John's son, Nicholas, and his girlfriend moved in with William.  Nicholas acted as William's personal assistant, performing tasks for William such as shopping, household chores and attending to his medical and dietary requirements.  John says that Nicholas would routinely update him about William's condition.  John says that as a result of these discussions he was aware that throughout 2015 William was becoming increasingly frail 'and vulnerable'.[6]  The official cause of William's death was suicide - he consumed a toxic quantity of barbiturates.[7]  In par 18 of his affidavit, John sets out a number of allegations about Andrew's behaviour towards William.  By way of example, John says that Andrew would 'frequently scream at my father'.  This was said to have happened both at William's home and at the Indian Ocean Hotel, a business, which until about February 2016, William, John and Andrew operated in partnership.  The allegations made by John are general in nature - there are no specific dates nor is there any attempt to set out what was actually said.  Against that there is no evidence from Andrew denying these events occurred.  Accordingly, for the purposes of this application, I am prepared to accept there existed between William and Andrew a volatile and occasionally hostile relationship.

   [6] Affidavit of John Willem Grove sworn 10 September 2020 [16].

   [7] Affidavit of John Willem Grove sworn 10 September 2020 [17].

10. In pars 19 and 20 of his affidavit, John notes that William changed his will on a number of occasions in the six months prior to his death.  John quotes from a letter from the solicitors acting for William in relation to his will in which they express some disquiet about the frequency of the changes to the will.  There is nothing in this evidence which suggests Andrew was in any way involved in these frequent rewritings of William's will.  It is difficult to see how, without more, this could in some way suggest undue influence by Andrew on William. 

11. Paragraphs 21 through to 26 of John's affidavit detail interactions between William, John, Andrew and Simon in relation to the deceased's will.  But these interactions took place in 2012 - some three years before William signed his final will.  Once again, it is difficult to see how this material could be relevant to a claim Andrew unduly influenced William in 2015.

12. The affidavit of Kerry Anne Grove does not really take the matter much further.  At par 6, Mrs Grove says she recalls an incident in 2012 when William said to John that Andrew was 'pressuring him to show him where the 2012 will was'.  In par 7, Mrs Grove refers to discussions she had with a solicitor who prepared the 2012 will.  These discussions took place in 2014.  These discussions were not with the solicitor who drew the final will.  It is not clear what relevance these discussions could have to a claim for undue influence.

13. The evidence John has at present in relation to a claim for undue influence is thin.  But in some ways that is not surprising.  John was not present on any of the occasions in 2015 when William gave instructions to his solicitors to draw the various wills.  It is clear his case will depend on circumstantial evidence.  But he does have some evidence of a difficult relationship between William and Andrew.  The relationship between Andrew and William does not appear to have been one of ease and mutual respect.  It is not clear whether Andrew attended with William at the solicitors when the various wills were drafted.  There is no suggestion he did.  Moreover, John's son, Nicholas, does not at any time appear to have told John, Andrew had any interaction with William which could be characterised as coercive. 

14. On balance, I am satisfied that the discovery order sought by the plaintiff ought be made.  It is to be borne in mind that it is for John to establish that he 'may' have a cause of action.  He does not have to establish a prima facie case.  There is sufficient evidence, in my view, to show that William and Andrew had a tense, and at times, hostile relationship.  William was frail in the last six months in which he made multiple wills.  At the very least the fact of the multiple wills indicates frequent changes of heart as to the disposition of his estate.  The reason for the multiplicity of wills may be revealed by the documents in category 2 and may assist John in determining whether he has a cause of action.  At the very least, disclosure of the two 'earlier wills' will allow John to make a decision as to whether or not there would be any utility in bringing an application to revoke the grant.

15. Subject to further submissions by the parties, I would make an order in terms of pars 1 and 2 of the originating process.  As to the costs, if proceedings are issued by John within three months of the making of this order then the costs of this application should be costs in those proceedings.  Otherwise, John should pay the costs of the application, including the reserved costs.  The parties ought confer and bring in a minute of orders.  If no agreement can be reached, each party ought file a minute of proposed orders within seven days of the publication of these reasons.

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

CB

Associate to Master Sanderson

15 MARCH 2021