VALLELONGA v. SORGIOVANNI

Australia

10.11.2017

Civil

A party to the dispute ought not be appointed as the administrator

By chamber summons filed 24 August 2017, the first and second Defendants sought an order appointing an administrator to the estate of the late Maria Stella Gianini 'pending suit'. The application was made in proceedings where the Plaintiff is seeking probate of a will made in 2013 in solemn form. It is the Defendants position the plaintiff lacked testamentary capacity. They seek to propound a 2001 will.

The estate is relatively modest. It comprises cash held in a number of accounts and a residential property in Redcliffe. It is this residential property which is causing concern. As at the date of the death of the deceased, tenants were in the property and they were paying rent. Those tenants departed in September of 2016. Since then the property has been vacant. Evidence led by the first and second Defendants indicated the property had fallen into disrepair. It would seem some work has been undertaken recently on the property by the Plaintiff and at least, in so far as the garden is concerned, the property is now in reasonable condition. But, the fact remains the Redcliffe property is vacant and it is in the interests of all parties that someone should take control of and be responsible for it.

Section 35 of the Administration Act 1903 provides that, the Court may, pending any proceedings touching the validity of any will, or for obtaining, recalling, or revoking any probate or administration, appoint an administrator of the personal estate and a receiver of the real estate of any deceased person, at such remuneration and with such full or limited powers as the Court may think fit.

The appointment of an interim administrator in circumstances such as present case is referred to as a grant of administration pendente lite - that is pending suit. It is generally said, rather cryptically, that the appointment will only be made, if there is sufficient reason to do so. The authorities suggest that as a general rule a party to the dispute ought not be appointed as the administrator. The appointment of an interim or limited administrator ought to be made on the basis that the appointment is in the interests of justice and in the best interests of all parties connected with the estate.

The course of litigation to date suggests that, there is unlikely to be agreement between the Plaintiff and the first and second defendants. Court is of view that an independent third party should be appointed. He can take the necessary taxation advice and if he concludes it is in the interests of the estate to do so he can conduct the sale process. Ian Blatchford who is proposed as the administrator is very experienced and has been appointed by present Court on many occasions in the past. His charges are reasonable and there is nothing to suggest he will do anything other than what is necessary to preserve the interests of the estate. He should have the power, if he believes it is in the interests of the estate to do so, to sell the property. It is not necessary for Mr Blatchford to take steps with respect to funds (the property of the estate) which are held in various accounts. They are not under threat and there is no need for him to deal with these funds. To that extent, the minute proposed by the first and second defendants requires amendment.

Tags : Probate Appointment Administrator

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