“Limited grants of administration” refers to a specific type of legal authority given to someone to manage the assets and affairs of a deceased person’s estate. Unlike a full grant, 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 unique needs of a particular estate.
The appointment of an interim administrator pending the determination of a contested probate suit upon an exercise of the Court’s inherent probate jurisdiction, traditionally effected by a grant of administration pendente lite or by reference to section or 23 of the Administration and Probate Act 1929 (ACT) is not made merely as a matter of routine or simply because a contested probate suit is pending. The Court must be satisfied that an order to appoint an interim administrator advances the due and proper administration of the estate and the interests of persons beneficially entitled to the estate.
Background
On 2 May 2019, Renato Cervo made a will appointing his wife, Margaret, as executor (“the Renato Cervo Will”). He named her as the beneficiary of a one-half share of his estate. Additionally, the Renato Cervo Will made provision for his daughter, Gina (Margaret’s step-daughter) and directed the executor to employ Ian Julien as the solicitor for the estate. Renato died on 24 December 2022, aged 89 years. The Court issued a grant of probate to Margaret on 31 May 2023.
Margaret executed a Will (“the First Will”) on 18 April 2023, in which she appointed Ian as the executor of her estate. Ian is also a residuary beneficiary under the terms of that will. Danny Moujalli (“the applicant”) is also.
On 16 May 2023, Margaret executed another Will (“the Second Will”) in which she revoked all former wills and testamentary dispositions and appointed the applicant as the executor and a residuary beneficiary under the terms of the Second Will to a greater extent than that provided by the First Will. The Second Will does not make any provision for Ian. Both the First and the Second Will make the same significant provision for Mrs Cervos’ sister, Ms Brenda Mitchell, a resident of the United States of America (USA).
On 6 June 2023, Magaret made an Enduring Power of Attorney, appointing the applicant as her attorney. On 15 June, Ian issued a letter to the applicant signed by Margaret, revoking the Enduring Power of Attorney. Margaret died on 30 August 2023, aged 93 years. She did not have any children. Administration of the Renato Cervo Will had not been fully completed before her death.
Chain of representation
A circumstance that sometimes arises in deceased estate matters is that the executor passes away before completing the role of executor. When this occurs in the Australian Capital Territory, if the executor leaves a will appointing an executor for their estate, that person becomes the executor of the original estate and the second estate under a common law principle referred to as the chain of representation. This has been codified in the Australian Capital Territory, Victoria and Queensland.
How Does The Chain Of Representation Work?
When the executor of the original estate passes away, the executor does not need to obtain probate for both wills; only a grant of probate of the deceased’s executor’s will. Once the new executor proves the deceased’s executor’s will, the chain of representation is enlivened, and the executor will automatically become the representative of and be entitled to administer the original estate.
Section 43A(1) of the Administration and Probate Act 1958 states
‘An executor of a sole or last surviving executor of a testator is the executor by representation of that testator.’
When Does The Chain Of Representation Break?
Under the Act, the chain of representation is broken by;
- (a) an intestacy or
- (b) the failure of a testator to appoint an executor or
- (c) the inability to obtain probate of a will.
Caveat
On 25 September 2023, Ian ( the Caveator) filed a caveat to prevent the Court from granting probate of the Second Will because at the time of the execution of the Second Will, Margaret:
- lacked testamentary capacity
- did not have knowledge and approval of the contents of the will
- was subject to the undue influence of Angelo Didio in the making of the will
The parties accepted that the caveat would result in a delay in obtaining a typical grant of probate and that the question of the validity of the Second Will is an issue.
The matter
There is no executor or administrator to administer Margaret and Renato’s estates. Renato’s estate in the ACT was worth over $26 million, and Margaret’s was over $40 million. The estates included real estate in ACT, NSW, Victoria, New York and Italy. The Court noted
there are numerous matters requiring attention to protect and preserve the significant value of the estates. There are also matters that require attention that touch upon the interests of third parties not connected to the estate…Arising from the nature of those matters, there is some urgency involved in the outcome of this application.
In the Estate of Cervo [2023] ACTSC 283 at [21]
In the Estate of Cervo [2023] ACTSC 283, Angelo Didio ( the applicant), seeks to be appointed as an administrator ad colligenda bona defuncti or as an administrator pendente lite concerning both estates under ss 9(1) or 23 of the Administration and Probate Act 1929 (ACT) (the Act). The applicant had maintained the ACT properties and provided personal assistance to the deceased persons. He said he would act without payment, and five of the six residuary beneficiaries favoured his appointment. However, there was no evidence that he possessed the qualifications, skills or experience to undertake the complicated tasks involved with the deceased’s real estate over three local jurisdictions and overseas. He had been made bankrupt on 8 May 2018 discharged on 9 May 2021.
The applicant filed and read several affidavits to support his application, two sworn by him on 4 October 2023 and others affirmed by the solicitor acting for the applicant. The Caveator was represented in these proceedings and consented to the Court appointing an administrator under s 23 of the Act pending the litigation about the validity of the Second Will. It is the applicant’s appointment to the role of administrator that the Caveator contends is inappropriate in the circumstances.
The decision
Ultimately, the Court considered the nature of the contest between the parties, which would involve the executor nominated in the second will as a witness, and the complexity of the estates weighed against his appointment. The Court ordered that an independent legal practitioner be appointed as:
- (a) administrator pendente lite of the personal estate and
- (b) receiver of the real estate
of Renato’s and Margaret’s estate.