Verboon v Westbrook - [2024] WASC 144

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   VERBOON -v- WESTBROOK [2024] WASC 144
CORAM:   COBBY J
HEARD:   22 FEBRUARY 2024
DELIVERED          :   22 FEBRUARY 2024
PUBLISHED           :   26 APRIL 2024
FILE NO/S:   CIV 1006 of 2023
BETWEEN:   PAIGE RAE VERBOON
Plaintiff

AND

SUSAN CAROL WESTBROOK
Defendant

Catchwords:

Succession - Revocation of grant of probate - Grant of probate to the plaintiff

Legislation:

Nil

Result:

Application granted
Grant of probate revoked
Plaintiff granted probate

Category: B

Representation:

Counsel:

Plaintiff	:	K Zhang
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Zilkens Lawyers
Defendant	:	In person

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

Estate of Rogers v Rogers [2009] WASC 358
Porteous v Rinehart (1998) 19 WAR 495

COBBY J:

This matter was heard on 22 February 2024. At the conclusion of the hearing I gave ex tempore reasons and stated that I would publish my reasons for decision, which would be edited from the transcript to correct infelicity of language and to include complete citations of authorities relied upon in determining the application. My reasons are set out below.
Nicholas William Verboon died on 19 May 2018. He was survived by his two daughters, the plaintiff and Danielle Pieta Verboon. He was not in a relationship with any person at the time of his death who might make a claim for provision against his estate.
By his will dated 17 March 2018, the deceased nominated the defendant as executor of his will. Probate of the will was granted to the defendant on 12 February 2019.
By the will, the residue of the deceased's estate is to be provided to the plaintiff and Danielle in equal shares. The plaintiff's evidence, which I accept, is that approximately a year after her father's death she spoke to the defendant about the estate and the defendant, in effect, assured her that she would convene a meeting with the plaintiff and her sister Danielle when she had dealt with the matter.
The defendant essentially said that she knew what to do and was looking after things.
In 2021, the plaintiff consulted solicitors Mountain Lawyers regarding the estate. On 2 December 2021, Mountain Lawyers wrote to the defendant seeking information as to the administration of the estate. There appears to have been no response.
On 5 April 2022, Mountain Lawyers again wrote to the defendant to advise, among other things, that the National Australia Bank would be commencing an action for possession, foreclosure and sale of the property known as 746 Warton Road, Bandyup, which appears to be a significant asset of the estate.
In or about July 2022, the plaintiff consulted Zilkens Lawyers, who wrote to the defendant on 11 July 2022, inviting her to join in the revocation of the grant of probate made to the defendant, but no reply was received to that correspondence.
On 23 August 2022, Zilkens Lawyers received a text message from the defendant's mobile phone, as follows:
Alex I will be going to city again tomorrow to release myself of duties. Bit of paperwork to do and unsecuring loan from 1st September 2022. I suggest Danni will need to stay on property to keep out druggies, squatters and thieves. I will give your details Property access from the 2^nd September will be their[1] responsibility not before hand
Susan Westbrook.
[1] Which I infer to be a reference to the plaintiff and her sister Danielle.
On 2 September 2022, the defendant sent another text message to the plaintiff's solicitors, as follows:
Alex.
Everything is paid up for two weeks & after that it is their responsibility, as they[2] will be the new executors. I have put new caveat on to be repaid as obviously they can't be trusted.
You will be notified by official post
I have police business today and will advise in the next few days about changeover dates ie keys, water & power
I will forward bills to pay befroe changeover can commence
[2] Again, I infer that to be a reference to the plaintiff and Danielle.
On 17 October 2022, the court issued a citation to the defendant to bring in the grant of probate. On 28 October 2022, that citation was served by way of substituted service. On 27 October 2022, the defendant advised that she had vacated the property and on 2 December 2022, the National Australia Bank entered into possession of the property.
On 9 December 2022, the plaintiff's solicitor sent the following text message to the defendant's mobile phone:
Dear Susan.
URGENT – FORECLOSURE
We have been advised by the bank that they have taken possession of 746 Warton Road and will be selling the property.
As you are still the executor, you must take steps to protect the estate and the beneficiaries.
If you fail to do so, you can be personally liable for losses.
Can you please contact us as a matter of urgency.
We also recommend that you obtain legal advice.
Regards,
Zilkens Lawyers.
On 5 January 2023, the plaintiff filed the writ in these proceedings. By that writ, the plaintiff set out a series of allegations regarding the failure of the defendant to administer the estate.
On 17 March 2023, the plaintiff filed a notice of motion that the defendant be committed for contempt for contravening an order of the court, being the failure to bring in the grant of probate to the court.
On 9 August 2023, the notice of motion was served by way of substituted service. The first return date of the motion was 6 October 2023. The defendant did not appear on that occasion.
Following the defendant's failure to appear on that date, the court made orders for the defendant to appear on 3 November 2023 and on that date the defendant appeared in person on the hearing of the notice of motion and provided the grant of probate to the court.
Amongst other things, that day the court ordered that there be a directions hearing in relation to the proceedings on 29 November 2023. The defendant failed to appear at that hearing, having provided a medical certificate to the court that day. On that date, being 29 November 2023, Forrest J ordered that the defendant file a defence by 21 December 2023.
Her Honour also adjourned the proceedings for further directions before her on 7 December 2023. On 7 December 2023, the defendant failed to appear. Her Honour proceeded to make orders that day, which were forwarded to the defendant by email at 12.05 pm the same day.
On 14 December 2023, the court advised the defendant that the order requiring her to file a defence by 21 December 2023 remained in force and that if the defendant did not confer with the plaintiff before 22 December 2023, the obligation to confer would be waived and the plaintiff would be entitled to enter the matter for trial.
The matter was entered for trial on 22 December 2023 and on 10 January 2023 was listed for hearing on 22 February 2024. For reasons I gave orally at the beginning of the hearing, I determined to proceed with the hearing in the absence of the defendant.
At the time of the hearing, the defendant had not filed a defence. The substitute executor named in the will has advised the plaintiff that she does not wish to be appointed executor of the will should the defendant be removed and Ms Danielle Verboon gave evidence that she does not wish to be granted letters of administration and consented to a grant of letters of administration to the plaintiff.
There are a wide variety of circumstances in which revocation of the grant of letters of administration or a grant of probate may be ordered. The court may do so on its own motion, if that is required.
The principles governing the exercise of the discretion to revoke a grant of probate or letters of administration were considered by E M Heenan J in Estate of Rogers v Rogers.[3] His Honour noted that in exercising the discretion, the ultimate purpose of the court is to ensure the due and proper administration of the estate and of the interests of the parties beneficially entitled to it.
[3] Estate of Rogers v Rogers [2009] WASC 358 [23] ‑ [33].
Consistent with that purpose, a grant of probate or letters of administration may be revoked where the grantee has persistently neglected or refused to carry out the due administration of the estate.[4]
[4] Estate of Rogers v Rogers [25] and the cases there cited.
In Estate of Rogers v Rogers, his Honour recognised that the removal of a grantee of representation is a major step, particularly where the person to be removed was chosen by the testator as the person most suitable to perform that role, such that the court should approach the removal of a grantee with caution and use the power to do so sparingly.[5]
[5] Estate of Rogers v Rogers [32].
For that reason, the court will ordinarily allow a grantee who wishes to continue an opportunity to repair or remedy any defect and progress promptly with the due administration of the estate,[6] although, as E M Heenan J recognised in Estate of Rogers v Rogers, there will be circumstances where it will be more efficient and involve a better chance of prompt administration if an application for the removal of the grantee is made.[7]
[6] Porteous v Rinehart (1998) 19 WAR 495, 518 ‑ 519.
[7] Estate of Rogers v Rogers [33].
I was satisfied that it was appropriate in this case to revoke the grant of probate to the defendant and appoint the plaintiff in her place.
I was not satisfied that all of the allegations made in the amended writ of summons were made out, particularly the allegations in relation to the defendant, in essence, having failed to secure the personal property of the deceased and failing to make any distribution to the plaintiff or Danielle Verboon in relation to any of the personal assets of the deceased, but having regard to the apparent failure of the defendant to communicate with the beneficiaries of the estate and her legal representatives over some time, her occupation of the property until October 2022, her expressed willingness to cease to act as the executor of the estate in text messages to the plaintiff's solicitor and her failure to take any significant part in these proceedings, I considered the court could not have confidence that the estate would be properly administered were it to be left in the hands of the defendant.
For these reasons, I made orders on 22 February 2024 for the revocation of the grant of probate made to the defendant and for the grant of probate to the plaintiff.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LT
Associate to the Hon Justice Cobby
26 APRIL 2024