Limited grants of administration are designed to accommodate specific circumstances arising in an estate where it is not possible to obtain a full grant of administration or probate. Unlike a full grant of which vests general powers in the executor or administrator to act on behalf of the deceased’s estate until the administration of the estate is complete, a limited grant typically vests a specific power or action and a time frame within which the grant is operable to accommodate the special needs of a particular estate.
In New South Wales s73 of the Probate and Administration Act 1898 provides that a grant of letters of administration pendente lite may be sought where litigation prevents the estate from being administered. The general jurisdiction of the court to make limited grants of administration should only occur in circumstances that require the interference of the Court to protect the assets of the estate
“it must be shown that the estate was in jeopardy—and that it was necessary to make the order for its protection.”
Greenway v McKay (1911) 12 CLR 310 at 315.
However, it is not necessary that the jeopardy arises from some misconduct on the part of a person dealing with or claiming to preserve the assets of the deceased estate; Gooley v Gooley [2020] NSWSC 798 at [125].
“The object of an appointment of administrator pendente lite is to ensure that the deceased estate is managed and preserved for the benefit of those persons who may ultimately be found in the suit to be entitled to it’
Gooley v Gooley [2020] NSWSC 798 at 126
A grant of administration pendente lite allows an administrator to recover, call in and preserve the assets of the estate for the duration of the proceeding until a judgment has been delivered by the Court. The administrator is required to treat potential beneficiaries with impartiality.
A grant of letters of administration pendente lite enables the Court to fashion the powers of the administrator to ensure that the deceased estate is managed and preserved for those beneficiaries the Court ultimately finds to be entitled to it. As a result, beneficiaries have no direct entitlement to the estate during the administration pendente lite.
The matter
Ivan Ritossa (the Applicant) and Anthony Ritossa (the First Respondent) are engaged in probate proceedings concerning the three competing wills of their late mother, Maria Ritossa (the Deceased).
Two adjoining parcels of land in Maroubra (the property) are the estate’s principal asset. The property has remained vacant and has been informally managed by the Applicant since the Deceased’s death on 30 April 2019.
The parties disagree as to whether the property should be sold or leased and whether a caretaker should have been appointed at a cost to the estate.
The First Respondent was granted orders under s 73 of the Probate and Administration Act 1898 (NSW) (the Act) and in the Court’s inherent jurisdiction for the appointment of an interim administrator pending the determination of the probate proceedings on 10 August 2022.
Tamara Goodwin (the Second Respondent), was appointed administrator with power until the determination of the probate proceedings, including any appeal;
- to lease or
- sell the property – with the prior written consent of the Appellant and the First Respondent or the leave of the Court.
The appeal
The applicant sought leave to appeal with the principal issue being whether the discretion to appoint an interim administrator could only be exercised protectively where it was established that the estate was “in jeopardy”.
In refusing leave to appeal, the Court of appeal held that the inability of the parties to agree on an interim arrangement and the management of the property meant it was open to the primary judge to appoint an interim administrator of the estate under s 73 of the Act
Additionally, the primary judge was correct in emphasising the broad nature of the power to appoint an interim administrator and resisting the Applicants urging to find some tangible evidence of “jeopardy” to the estate as a pre-condition to, or prerequisite of, appointment.
“[i]t is quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words”
Owners of Ship “Shin Kobe Maru” v Empire Shipping Company Inc (1994) 181 CLR 404 at 421; [1994] HCA 54
Similarly, as the power to appoint an interim administrator is constrained only by the requirement to advance the due and proper administration of the estate in the best interests of the ultimate beneficiaries judicial glosses should not otherwise be applied to the broad language of the Act as the
“Necessity for the power to be exercised judicially trends in favour of the most liberal construction”.
Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178 at 205
heirs & successes 