Probate, Costs, Administrator Pendente Lite

Melville Gooley, died on 23 December 2017. Two of his daughters Aleta and Melinda were named as the executors of Melville’s Will dated 18 July 2014 (the 2014 Will). Following Melville’s death, Aleta and Melinda opened a bank account as Executors of the Estate of Melville Gooley (“the account”).

Melville’s son Brett lodged a caveat in January 2018 preventing a grant of probate being made without prior notice. On 9 July 2018, Aleta and Melinda commenced probate proceedings in relation to the 2014 Will.

Brett is concerned that Melville lacked testamentary capacity to make the 2014 Will as he had suffered from dementia for many years before he died, therefore Brett submits that Melville’s last valid will was executed in February 2010 (the 2010 Will) or, alternatively, June 2012 (the 2012 Will).

Brett was named the sole executor under both the 2010 Will and the 2012 Will and sought probate of the 2010 Will or, alternatively, the 2012 Will.

Aleta and Melinda believe the 2014 Will is valid although if the Court finds that Melville lacked testamentary capacity at the time, they contend that he had testamentary capacity when making Wills in March 2014, May 2013, March 2013, November 2012 or September 2012; therefore if the 2014 Will is held to be invalid probate should be granted in respect of one of those Wills.

Aleta and Melinda transferred over $1.4 million from the estate into the account and their legal costs were paid from this account. Brett sought the appointment of an administrator pendente lite the object of which

‘is to ensure that the deceased estate is managed and preserved for the benefit of those persons who may ultimately be found… to be entitled to it’(at [126]).

In Gooley v Gooley [2020] NSWSC 798 the court concluded that the assets of the estate were at a level of jeopardy sufficient for the appointment of an administrator pendente lite; however should Aleta and Melinda provided an affidavit outlining past transactions these concerns would be alleviated.

If the court grants probate on a Will that names Aleta and Melinda executors s 44 of the Probate and Administration Act 1898 provides retrospective authorisation of their spending of Estate funds before the grant of probate; importantly this will only apply to expenditure that could properly have been incurred by the executors of the Estate.

Ultimately whether or not Aleta and Melinda’s legal costs in this proceeding will be paid out of the Estate depends solely on the Court’s discretion under to s 98 of the Civil Procedure Act 2005 (NSW).

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