A grant of administration ad litem provides for the management of legal proceedings on behalf of an estate; enabling the estate to bring or defend legal proceedings. A grant ad litem is necessary where
- no personal representative willing or able to take out a grant of probate or administration and
- proceedings involving the deceased cannot be continued or finalised without a representative of the deceased’s estate.
The Court carefully considers the form and scope of the grant as for all purposes – within the limits of the grant- the administrator ad litem is the representative of the estate.
Usually, a proposed administrator ad litem must file an affidavit confirming their independence and understanding of their fiduciary duties when taking up the appointment to protect innocent third parties.
An administrator ad litem represents the estate within the limits of the grant and the administrator’s actions bind the estate, may affect the entitlements of all beneficiaries and will have cost consequences for the estate.Re Ciantar  VSC 116, 
The Court has discretion under s57 of the Administration and Probate Act 1958 and r 7.01 of the Administration and Probate Rules 2014, to require (unless good reason is shown otherwise) an appropriate bond or guarantee to secure the performance of the duties of an ad litem administrator.
Ermioni Kordos (‘the deceased’) died on 22 October 2021, aged 87 years. The deceased’s will dated 21 April 2016 has been deposited with the Office of the Registrar of Probates (‘the will’). She was predeceased by her husband Evangelos Kordos (‘Evangelos’)and her son Vasilios (Bill) Kordos (‘Vasilios’) who died on 15 June 2021. The deceased’s son Zafiri (Geoff) Kordos (‘the plaintiff’) survives her.
The deceased appointed Vasilios as executor of the will; as Vasilios predeceased her the estate was left to Vasilios and Eleanor’s son Evaan Kordos (‘Evaan’). No provision was made for the plaintiff under the deceased’s will.
Probate of Vasilios’ will was granted to his widow, Eleanor Kordos (‘Eleanor’) on 23 September 2021.
Vasilios and the deceased were registered as joint proprietors of the deceased’s home in Doncaster (”the Doncaster property”) that was sold in 2019 for $1.245 million. While the deceased initially received her half share of the proceeds on 30 September 2019 two separate withdrawals were made from her bank account:
- $500,000 was withdrawn and deposited into Vasilios and Eleanor’s bank account; and
- $100,000 was withdrawn and deposited into Vasilios’ bank account.
In October 2019 a property in Rosebud, Victoria (‘the Rosebud property’) was purchased for $505,000 by Vasilios and Eleanor as joint proprietors. The plaintiff submits that including stamp duty and transaction costs, the total acquisition cost of the Rosebud property was approximately $530,360. The plaintiff suggests that the deceased’s half share of the proceeds of the sale of the Doncaster property were used for the purchase of the Rosebud property.
In Re Kordos  VSC 14 the plaintiff submits there may be grounds for a careful investigation of what occurred with the proceeds of the sale of the Doncaster property, and that as he stands to benefit as an eligible applicant to make a family provision claim from the deceased’s estate, he is the appropriate person to investigate what occurred with the proceeds of the sale of the Doncaster property and then issue a proceeding to recover the $600,000 from Eleanor.
If the plaintiff is appointed as the administrator ad item of the deceased estate the recovery of the traceable proceeds of the sale of the Doncaster property, will form the basis of a family provision claim under Part IV of the Administration and Probate Act 1958 in which he will be the plaintiff. However, the plaintiff submits that he does not have a conflict of interest as his only interest is in seeing the $600,000 recovered for the estate.
The plaintiff relied upon Mataska v Browne  VSC 62,  where the Court granted letters of administration ad litem to a plaintiff – whose only interest in the estate was a proposed family provision claim – to commence a proceeding against the defendant seeking to recover property for the estate.
Where a potential family provision claimant seeks to be appointed as administrator ad litem themselves, the Court will consider their application cautiously due to the potential for conflict of interest to arise given their lack of independence. Ultimately, however, whether a potential family provision claimant would be appointed as an administrator ad litem depends on the particular circumstances of each case.
In considering whether to appoint a person as an administrator ad litem the Court is mindful of the interests of third parties, as well as the beneficiaries of the estate. If litigation to recover funds is unsuccessful, there is the potential for costs orders to be made against the estate.
As Evaan is either unwilling or unsuitable to act as administrator, the Court held that it was not appropriate to grant letters of administration ad litem to the plaintiff as it is a relevant consideration as to whether the plaintiff would act impartially in the administration of the estate, or whether there may be a potential conflict between his duty and interest.
The plaintiff submits that although he is unable to provide an administration guarantee under s 57 of the Administration and Probate Act 1958 (Vic) and r 7.01 of the Supreme Court (Administration and Probate) Rules 2014 is not appropriate because the estate currently contains no assets. Additionally, if the claim to recover the $600,000 fails the estate would not suffer loss as any claim be funded by the plaintiff himself.
There was no information provided to the Court concerning the plaintiff’s capacity or willingness to indemnify the estate if the litigation were unsuccessful and an adverse costs order was made against it.
The court held that it was not appropriate to grant letters of administration ad litem to the plaintiff as if the plaintiff were appointed he would have control of any funds paid back into the estate making the risk or potential for maladministration much greater compared to the appointment of an independent administrator.