Urgent action may be necessary in estate administration before a general grant of probate or administration is obtained. If delay risks loss or prejudice to the estate, the court may issue a limited grant to address the immediate need.
This note examines litigation grants (ad litem) and outlines how courts prioritise protection of estate interests over procedural formality.
The Role of Limited Grants in Litigation
Greenway v McKay [1911] HCA 25; 12 CLR 310 illustrates the court’s approach to limited grants.
A widow sought urgent authority to commence proceedings on behalf of her deceased husband’s estate before expiry of the limitation period. The High Court recognised that a cause of action may constitute an estate asset, and that failure to bring the claim in time would result in its loss.
The High Court held that a grant limited to bringing proceedings was justified. Protection of a legal claim was treated as equivalent to protection of physical estate property.
A grant ad litem typically arises where there is no personal representative and litigation must be commenced or defended. The grant is confined to the conduct of proceedings, ensuring the estate is represented despite delay in obtaining a full grant.
Modern procedural rules may permit courts to appoint a representative for litigation without a formal grant of authority. The jurisdiction to issue a grant ad litem remains available, particularly where proceedings are contemplated but not yet commenced.
Flexibility Over Formalism
Authorities emphasise that the court’s jurisdiction is functional rather than formulaic.
Traditional labels such as ad colligenda bona or ad litem describe common situations where limited authority is granted, but do not define strict legal boundaries. The key consideration is the powers necessary to protect the estate in the circumstances. Where there is a wasting asset, a vulnerable business, or an expiring legal claim, the court may issue a grant tailored to that need.
Glossary of Key Terms
- Grant of Administration
A court order appointing a person to manage a deceased estate where there is no valid executor. - Limited Grant
A grant that confers restricted powers, either for a specific purpose or for a limited time. - Ad Litem (“for the lawsuit”)
A grant limited to enabling a person to commence or defend legal proceedings on behalf of the estate. - Ad Colligenda Bona (“to collect the goods”)
A grant allowing a person to collect and preserve estate assets, usually in urgent circumstances. - Cause of Action
A legal right to bring a claim in court; in estate contexts, it can itself be an asset. - Legal Personal Representative
The executor or administrator is legally authorised to deal with the estate.
Grant Application
Grants of representation in estate administration vary in scope. A general grant provides full authority. The court may issue limited grants where urgency, uncertainty, or practical obstacles require a targeted response. To obtain a limited grant, an applicant must usually follow a clear process:
1. Prepare and file an application with the Probate Registry or relevant court. The application form should specify the type of limited grant sought, the powers requested, and the reason for urgency or limitation.
2. Support the application with an affidavit detailing the justification for the requested powers. The affidavit should clearly identify the immediate risk or issue requiring intervention, set out the relevant factual background, and provide evidence of the urgent need.
3. Attach any necessary supporting documents, such as a copy of the death certificate, the will (if any), details of estate assets at risk, and any correspondence demonstrating attempts to contact executors or beneficiaries.
4. Serve notice of the application on interested parties, including beneficiaries, executors, or anyone with a legal interest in the estate. This may be done personally or by mail, in accordance with local practice.
5. Allow interested parties an opportunity to object or make submissions. The usual response period varies by jurisdiction; in urgent applications, it may be shortened with the court’s leave.
6. The court or Probate Registry reviews the material, hears any objections, and considers whether to grant the limited authority requested. The court may tailor the scope of the grant or impose conditions based on the estate’s circumstances.
Grant of administration ad colligenda bona
In urgent cases, the process can be expedited and orders made on short notice to prevent loss or prejudice to estate assets. Typical timelines for unopposed, straightforward applications range from several days to two weeks. Urgent applications are decided more promptly where delay would place assets at risk.
A grant of administration ad colligenda bona is a targeted, interim mechanism to protect estate assets where delay in obtaining a full grant would place them at risk. Risks may include perishable property, a vulnerable business, or difficulty identifying or contacting the personal representative. The court may intervene to preserve the estate in these circumstances.
Case law confirms that the rationale for limited grants is not restricted to assets at risk of physical deterioration. Courts recognise that risks may also arise from commercial uncertainty, geographic distance, or legal incapacity. In these situations, a limited grant allows an appropriate person, not necessarily connected to the estate, to collect assets, preserve their value, and take specific legal or commercial actions as required.
The guiding principle is functional rather than formal. The court focuses on the powers required to safeguard the estate in the circumstances. Limited grants, including ad colligenda bona, address the period between death and full administration and help prevent loss from delay.
Greenway v McKay (1911) 12 CLR 310
The decision in Greenway v McKay (1911) 12 CLR 310 demonstrates the court’s flexibility in making limited grants, particularly ad litem grants. In that case, a widow sought authority to bring proceedings before the expiry of the limitation period. The High Court held that a grant limited to litigation was justified, as protecting a cause of action was as important as preserving existing property. Preventing loss of the claim was sufficient to ground the grant. Since there was no risk to any estate asset, the grant was for the benefit of the estate. The High Court confirmed the availability of the grant on the basis of the danger to the estate of the loss of a cause of action available to it, rather than the risk to a physical asset. Thus, O’Connor J observed:[62]
When the matter came before the learned Judge on the second occasion, he seems to have taken the view that his jurisdiction to act under r. 15 was limited to cases in which the estate was in jeopardy, and the application must be for the protection of the estate’s assets. I see no ground under any circumstances for so limiting the jurisdiction, but, in regard to this special grant made, not for the purpose of dealing with existing assets and collecting new, but for another purpose altogether, it seems to me it is quite immaterial whether there is an estate, or whether there is any money in the estate. I think, therefore, the ground upon which the learned Judge acted in making the second order had really no foundation in law.
Grant Ad Litem
A grant ad litem arises where there is no personal representative, and litigation must be commenced or defended. It is limited to the object of the suit and premised on the action being within the jurisdiction where the grant is sought.[63]
In Australia, courts generally do not require a formal grant of administration ad litem if proceedings are ongoing. Jurisdictional rules typically allow the court to appoint a representative for a deceased estate where there is no personal representative. Terminology and procedures for limited grants, including ad litem grants, vary between states and territories.
Jurisdictional differences are significant in both terminology and practical requirements. In New South Wales, a grant ad litem may be sought by a simple application to the Supreme Court. In Victoria, Practice Directions may require an affidavit setting out detailed justification for urgency. South Australia provides specific statutory forms for limited grants and has particular requirements for notification and supporting documentation. In Queensland, the court may require more comprehensive evidence of necessity, especially in contested matters. These differences extend to service procedures, timelines, and the actions limited administrators can take. Practitioners should review local probate rules and practice notes in the relevant jurisdiction to ensure compliance.
In Polites v Salkanovic[2026] SASCA 2, the deceased’s estate comprised significant real property and was technically insolvent. The executor did not seek probate, considering the estate fully administered and insolvent. A beneficiary sought a grant of letters of administration ad colligenda bona to enable a claim for further provision under the Inheritance (Family Provision) Act 1972 (SA) and to protect estate assets.
Practitioners should be alert to situations where an executor is unwilling to act, particularly in complex or insolvent estates. A limited grant, such as ad colligenda bona, may be necessary to protect estate assets and preserve the opportunity for eligible claimants to pursue family provision claims. Timely action and clear justification for intervention are essential where delay or inaction may prejudice beneficiaries or claimants.
Practical indicators that a limited grant may be appropriate include:
– Prolonged absence or inaction by the executor
– Urgent threats to perishable or volatile assets
– Inability to secure information or documentation vital to administering the estate
– Unresolved disputes among potential administrators
– Difficulty locating beneficiaries or executors
– Imminent expiry of limitation periods for bringing claims
Other signs include assets in jeopardy due to creditor actions, urgent commercial decisions regarding a business, or a pressing need to initiate or defend litigation for the estate’s benefit. Early identification of these factors allows for a timely application for a limited grant, minimising the risk of loss or prejudice.
The respondent opposed the application, seeking security for costs and a stay of proceedings. The respondent argued that the application was an abuse of process, that there was no threat to estate assets, and that the applicant had engaged in disentitling conduct under section 7(3) of the IFP Act.
Held (dismissing the respondent’s application for security for costs and granting the applicant’s application):
1. An order for security for costs pursuant to rule 115.1(1)(a) of the Uniform Civil Rules 2020 (SA) will not be appropriate in circumstances where an applicant brings a claim for his own benefit, but incidentally, in doing so, other persons will also benefit. That there may be other persons interested in the proceedings is not a sound basis for inferring that the application has been brought for their benefit.
2. The purpose of seeking an order for a grant of letters of administration ad colligenda bona in the estate of the deceased, where no grant of probate has been made, is not an ulterior purpose even if the consequence of making a grant is that the applicant will be able, as an eligible applicant, to make a claim for further provision out of the estate, once the order of appointment is made.
3. Where there are concerns about an executor’s failure to act on requests for the provision of information and documents relating to the estate, and an executor is unwilling to take a grant of probate of the will it is appropriate and proper for an applicant, being a person with an interest in the deceased’s estate to apply to the Court for an appointment of an administrator ad colligenda bona.
Succession Act 2025 (SA) Schedule 3; Inheritance (Family Provision) Act 1972 (SA) ss 7(3), 8(6); Administration and Probate Act 1919 (SA) s 69; Testator’s Family Maintenance and Guardianship of Infants Act (1916) (NSW), referred to.
The applicant sought a grant of letters of administration ad colligenda bona.
In Salkanovic v Polites [2025] SASC 86, the executor was unwilling to take a grant of probate of the Will. As was the case in Mataska v Browne [2013] VSC 62, it was appropriate and proper for the applicant, being a person with an interest in the deceased’s estate, both as a beneficiary and as a person entitled to make a claim for family provision, to apply to the Court for the appointment of an administrator ad colligenda bona.
The basis of the applicant’s concern is the executor’s failure to act on his requests for the provision of information and documents relating to the estate, in particular, documents which are alleged to evidence the debt of $4,431,293.04 owed by the deceased’s estate to Nominated Manager Ltd, which is the basis for the executor’s conduct in transferring shares from the deceased’s estate to Nominated Manager Ltd and, as a result, the consequent contention that the deceased’s estate is insolvent. These circumstances give rise to a reasonable concern on the part of the applicant that the executor may have breached his executorial duty by parting with the assets of the deceased’s estate.
In Stanley J’s view, that requires investigation. That investigation may identify an urgent need to protect the estate and its assets. This concern is not allayed by the fact that the executor has not given evidence but has relied on affidavits from his solicitor. The applicant has a personal interest in the estate of the deceased and, as a beneficiary of the unadministered estate of the deceased, has a right to “secure that the assets are properly dealt with” during the course of administration. Commissioner of Stamp Duties (Qld) v Livingston [1965] HCA 54 at [24]; (1964) 112 CLR 12 at 22.
In Official Receiver in Bankruptcy v Schultz(1990) 170 CLR 306, the High Court said: The right which any beneficiary has in an unadministered estate springs from the duty of the executor to administer the estate, to preserve the assets and to deal with them in the proper manner. Each beneficiary has an interest in seeing that the whole of the assets is treated in accordance with the executor’s duties. In that sense, the beneficiaries as a class may be said to have an interest in the entire estate at 313.
- 1. The executor’s failure to do these things established the justification for the appointment of an administrator ad colligenda bona to rectify the position with respect to the deceased’s estate and was a sufficient basis for the orders made by the Court.
- 2. It was for these reasons that Slattery J made an order granting the application for letters of administration of the Estate of Florence Gemenis Polites (deceased) to Sarah Hooper ad colligenda bona.
Stanley J made orders largely in accordance with the applicant’s draft orders. The executor appealed, arguing that his Honour’s orders exceeded the scope of a grant ad colligenda bona. In dismissing the appeal, the Court of Appeal of South Australia, in Polites v Salkanovic [2026] SASCA 2 (Bleby JA; Doyle and David JJA agreeing), described the traditional configuration of limited grants of administration and the modern approach to granting them.
As well as ad colligenda bona, the Court described the following traditionally configured limited grants:
A grant ad litem (‘for the suit’) describes a grant made for the purposes of enabling the estate to be represented by an administrator so as to defend, commence and prosecute legal proceedings. An early recorded example of this type of grant occurred in the 1843 decision of Faulkner v Daniel, 3 Ha 199. The Vice Chancellor, Sir James Wigram, explained that, when obtaining a limited grant of administration, the grant must be sufficient to ensure representation in any identified suit. Conversely, the capacity of an estate to be represented will be set by the limits of the grant.
In principle, Stanley J thought it was clear that, where a limited administration is granted by the proper Ecclesiastical Court, and the limited administrator is made a party to a cause, the estate of the deceased is perfectly represented for all purposes, to the extent of the authority conferred by the letters of administration. A Court of exclusive jurisdiction has the power to grant letters of administration, and, to whatever extent that Court grants administration, to that extent the estate will be represented in any suit to which the administrator is a party.
It is not inconsistent with this to say that, if the administration granted be more limited than the purpose of the suit require, and it is in the power of the Plaintiff to obtain a general or more extensive representation, the Court may require the Plaintiff to do the utmost he can to make the suit perfect by obtaining a representation commensurate with the object of the suit, or as nearly so as the practice of the Ecclesiastical Court will enable him…
The power to grant administration ad litem remains available for both current and future litigation, as set out in UCR r 355.6. This rule applies in circumstances such as delays in obtaining a full grant, ongoing administration during litigation, the death or disappearance of estate administrators, the involvement of minors, absence from the jurisdiction, or incapacity of an executor. The court has confirmed that its jurisdiction is flexible and can adapt the form of the grant to the estate’s needs at a particular time.
Limited grants may be issued for specific purposes or periods when a full grant is not available, depending on the estate’s circumstances. The executor’s argument that the application was confined to a grant ad colligenda bona did not address the nature of the jurisdiction. The appellant submitted that the orders did not strictly fall within the ad colligenda bona category. The court emphasised that the jurisdiction is not limited by labels but is determined by legal principles. The court may issue various types of limited grants as required to protect the estate’s interests.
A grant ad litem arises where there is no personal representative and legal proceedings must be commenced or defended. It is confined to the purpose of the litigation and ensures the estate can participate in proceedings despite delay in obtaining a full grant.
Authorities confirm that the court’s probate jurisdiction is inherently flexible. Terms such as ad colligenda bona and ad litem are descriptive rather than restrictive. The key consideration is whether the order sought is necessary to protect the estate’s interests, including preserving assets, maintaining claims, or enabling urgent legal action. Practitioners should remain aware of the limitations and risks of limited grants. Limited grants confer authority only for the specific matters set out in the order. Actions taken beyond the defined scope may be ineffective or open to legal challenge.
Limited administrators may have restricted access to estate information or assets, which can hinder administration. There is also potential for dispute or challenge from other interested parties regarding the appropriateness or scope of the grant. Careful assessment of the estate’s needs and ongoing communication with interested parties is essential before proceeding. Limited grants are practical tools determined by the estate’s circumstances, not by formal classifications.
Conclusion
Limited grants reflect the pragmatic approach of probate law. The court is not confined by historical labels or rigid categories but responds to the practical needs of an estate in transition.
Greenway v McKay [1911] HCA 25; 12 CLR 310 confirms that the protection of an estate includes safeguarding potential assets, not only those already held. Limited grants are essential tools to ensure estates are protected when required.