McCullough v Haigh as Executor - [2025] WASC 352

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   MCCULLOUGH -v- HAIGH AS EXECUTOR [2025] WASC 352
CORAM:   GETHING J
HEARD:   ON THE PAPERS
DELIVERED          :   28 AUGUST 2025
PUBLISHED           :   28 AUGUST 2025
FILE NO/S:   CIV 1614 of 2025
BETWEEN:   CHERIE DANIELLA MCCULLOUGH
Plaintiff
AND
DEBORAH ANN HAIGH AS EXECUTOR
First Defendant
CONRAD STEPHEN WICKERS
Second Defendant
DEBORAH ANN HAIGH
Third Defendant

Catchwords:

Probate - Revocation of grant on the basis that the executor persistently neglected or refused to administer the estate - Identity of replacement administrator

Legislation:

Administration Act 1903 (WA) s 29
Supreme Court Act 1935 (WA) s 18

Result:

Grant of letters of administration with the will annexed to another beneficiary under the will.

Category: B

Representation:

Counsel:

Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance

Solicitors:

Plaintiff	:	Legato Law
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance

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

Grey v Youngson [2006] WASC 123
Hancock v Rinehart [2015] NSWSC 646; (2015) 106 ACSR 207
Nicholl v Mattingly [2025] WASC 297
Porteous v Rinehart (1998) 19 WAR 495, 505 - 506
Re Banning; Ex Parte Banning [2018] WASC 313
Rogers v Rogers [2009] WASC 358
Smith v Partridge [2018] WASC 128
Walter v Hasslinger [2022] VSC 460
Wood v Wood [No 4] [2014] WASC 393

GETHING J:

Introduction

Gary William Wickers (Deceased) died on 24 March 2022. He made a will dated 25 October 2006 (Will).[1] The validity of the Will is not in issue. The Will appointed Deborah Ann Haigh as the executor. Ms Haigh is the Deceased's sister.
[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).
There are three beneficiaries under the Will, each entitled to a third of the Deceased's estate (Estate). The first is Ms Haigh. The second is Cherie Daniella McCullough. Ms McCullough is one and the same person as Clinton David McCullough who is the named beneficiary in the Will.[2] The third is Conrad Stephen Wickers. Ms McCullough and Mr Wickers are the biological children of the Deceased.
[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).
Ms Haigh was issued with a grant of probate on 23 May 2024 (Grant). However, she has not taken any steps to administer the Estate. Accordingly, by writ of summons filed 13 June 2025, Ms McCullough sought an order revoking the Grant and granting letters of administration with the Will attached to her, as well as orders to finalise the involvement of Ms Haigh as executor (Writ). Ms Haigh is the first defendant in her capacity as executrix and the third defendant in her own right. Mr Wickers is…

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 McCullough v Haigh as Executor

Details

AGLC: McCullough v Haigh as Executor [2025] WASC 352
Case: [2025] WASC 352
Decision Date: 28 AUGUST 2025

CaseChat Overview and Summary

The case of McCullough v Haigh as Executor revolves around a dispute concerning the administration of an estate. The plaintiff, Ms McCullough, sought to have the grant of probate issued to the defendant, Ms Haigh, revoked on the basis that Ms Haigh persistently neglected or refused to administer the estate. The case was heard and determined in the Supreme Court of the relevant jurisdiction.

The central legal issue before the court was whether Ms Haigh's persistent neglect and refusal to administer the estate warranted the revocation of the grant of probate. Specifically, the court had to assess whether Ms Haigh had failed to take adequate steps to administer the estate, as alleged by Ms McCullough. This involved examining the evidence provided by Ms McCullough regarding the lack of action by Ms Haigh in distributing the estate, providing information to the beneficiaries, or taking steps to sell the property.

The court considered the affidavits and evidence provided by both parties, particularly focusing on Ms McCullough's allegations of neglect and refusal by Ms Haigh to administer the estate. The court found that Ms Haigh had indeed failed to take adequate steps to administer the estate, as evidenced by the lack of distributions to beneficiaries, the absence of information provided to Ms McCullough, and the inaction regarding the sale of the property. Based on these findings, the court determined that Ms Haigh's persistent neglect and refusal justified the revocation of the grant of probate. The court also noted that Ms McCullough had demonstrated that she would administer the estate according to law if appointed as administrator.

In light of the above findings, the court revoked the grant of probate issued to Ms Haigh. The court further ordered that letters of administration be granted to Ms McCullough, thereby enabling her to take over the administration of the estate. This decision ensures that the estate will be properly administered and that the beneficiaries receive the benefits due to them from the estate.

Orders

Orders of the court

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Background

Background to the litigation

Background 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. 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][7] Third McCullough Affidavit, pars 17 - 19. 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][8] Third McCullough Affidavit, pars 3 and 4, Annexure CM-4. 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] [9] Third McCullough Affidavit, par 5. [10] Third McCullough Affidavit, par 6, attachment CM-3. As mentioned, on 23 May 2024 the court issued the Grant to Ms Haigh. 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] [11] Third McCullough Affidavit, par 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. [12] Third McCullough Affidavit, pars 9 - 12, annexures CM-4, CM-5. 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.[13] Third McCullough Affidavit, pars 14 - 16. Finally, Ms McCullough deposes that if appointed administrator of the Estate she will administer the Estate according to law.[14][14] Third McCullough Affidavit, par 22.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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