Administrator ad litem

Alan and Gwyneth Grant married in 1953 and had five children, Nerez, Seth, Ryven, Miles and Tansin. Gwyneth died in May 2017 and Alan in November 2019. The Grant family life was marred by conflicts that had to be resolved by Court proceedings through their estates, which were parties to two sets of proceedings that were heard together.

Action by administrator ad litem

An administrator ad litem is a person appointed by the court (if there is no existing executor or administrator of the estate or if the executor or administrator has a conflicting interest) to represent the estate during a lawsuit- if there is no existing executor or administrator of the estate, or if the executor or administrator has conflicting interests.

The Proceedings

Alan commenced proceedings against his daughter Nerez Grant who as her father’s attorney had transferred a property at Killcare to her daughter Kashaya on 27 September 2017. Additionally, Allan sought sums of $100,000 and $34,700 that Nerez had transferred out of his bank account. Following Alan’s death, his estate was represented by his son Seth as administrator ad litem.

Power of Attorney

Alan’s power of attorney did not authorise Nerez to make gifts of real property. The transfer executed by Nerez expressed consideration of $900,000 in favour of Alan; however, no consideration was paid.

Nerez and Kashaya submitted a copy of a typed letter purportedly sent by Alan directing Nerez to transfer the property to Kashaya. The letter was signed “Alan”. The Court accepted the evidence of a handwriting expert, finding the transfer constituted a fraud to which Kashaya was a party.

The Court held that Nerez had breached her fiduciary duty in a dishonest and fraudulent scheme to transfer Alan’s interest in the Killcare property to Kashaya and in debiting $34,700 from Alan’s account to pay transfer duty to the Office of State Revenue; ordering that the Killcare property be transferred to the administrator for no consideration.

Similarly, the Court held the sum of $100,000 transferred from Alan’s bank account by Nerez be held on trust for the estate.

Family Provision claim

Nerez sought a family provision order from Gwynneth’s estate. The Court dismissed the claim finding that Nerez had already received substantial benefits from her mother and had ill-treated her parents. Ordering Nerez to pay the estate’s costs of the family provision proceedings.

The Appeal

On appeal, Nerez and Kashaya submitted that the court failed to consider “expert reports in evidence supporting the(ir) case”, and that Alan intended that the property remain out of the hands of Seth and his sister Tansin.

In dismissing the appeal, the full court found the appellants failed to identify any “expert reports” supportive of their case; affirming that Kashaya was a party to obtaining title by fraud.

Nerez challenged the family provision decision on several grounds including Alan’s dementia, several wills made by Alan under undue influence and an assertion of favouritism on the part of the primary judge.

The full court held that Alan’s dementia, which went to testamentary capacity, and the allegations of undue influence were irrelevant to the family provision proceedings against Gwynneth Grant’s estate. Nerez made no submissions to the court of appeal in support of the allegation of favouritism, additionally, a review of the transcript revealed no basis for the assertion.

The New South Wales Court of Appeal ordered Nerez and Kashaya to pay the legal costs of the estate.

 

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