An executor of an estate must have legal capacity. Rule 5.03 of the Supreme Court (Administration and Probate) Rules 2015 empowers the Court to grant letters of administration durante minore aetate appointing an administrator in circumstances where the nominated executor is not 18.
Grants cannot be made to persons who are under 18, grants must be made to their guardians for the minor’s use and benefit until they are 18 – -subject to any limitations or conditions the Registrar thinks fit. A minor aged 12 years or more may elect a guardian, otherwise, the Registrar may assign a guardian.
A minor above the age of 12 may elect the appointee, or the Court may assign an administrator known as a grant durante minore aetate. The Registrar will not assign a guardian unless satisfied that the proposed guardian is ready and able to undertake the guardianship. A grant durante minore aetate continues until the designated executor turns 18 and obtains a grant.
The deceased died in March 2017. At the time of his death, he lived in Monaco. Although he had made several wills, he made an informal will in April 2014.
The deceased is survived by his son, who lives in Italy with his mother. The deceased was in a domestic relationship with his son’s mother from 2006 until around September 2014. In November 2016, they were parties to property orders made by the Family Court of Australia.
The mother, as the guardian of the minor beneficiary, is entitled to a grant of administration. However, she lived out of Victoria. The mother instructed a firm of solicitors in Melbourne (the Plaintiff’s) to act on her behalf.
The Court was satisfied that the plaintiffs had standing to bring an application for a limited grant as the mother’s attorney as it was not practicable for her to make an application on her son’s behalf.
As a minor is the principal beneficiary and could not consent, another beneficiary had not provided consent, and as the value of the estate exceeded $1 million, the Court appointed counsel as contradictor to represent the son’s interest. The appointment of a contradictor is a method ensuring all parties’ interests are considered when approval of a settlement is sought.
In final submissions, the contradictor was concerned with the form of the grant and the plaintiffs’ standing in making the application but generally agreed that the informal document be admitted to probate.
On 23 August 2022, the Registrar of Probates ordered letters of administration with the will annexed to the plaintiffs limited for the partial use and benefit of the minor child of the deceased until he attains the age of eighteen and applies for and obtains a grant.