Section 35 of the Administration Act 1903 (WA) codified Administration pendente lite, empowering the court to appoint an administrator of the personal estate and a receiver of real estate during litigation relating to the validity of a Will or a grant of probate or administration. The court has discretion to determine the scope of the appointee’s powers and appropriate remuneration.
When an estate is at risk due to delay, the court may grant administration ad colligenda bona defuncti to preserve assets, even if the person entitled to a full grant has not applied. This type of grant does not prove the will and arises from the court’s inherent jurisdiction
“administration ‘ad colligenda bona’ is granted when the estate of a deceased person may be endangered by delay in administering it in order to preserve the estate property without waiting for an application for a grant of administration by any person who may ultimately be entitled to such a grant. These grants are always by way of administration only, and where the deceased died testate, the will is not proved or annexed to the grant. Such a grant is made under the court’s general powers and is not expressed by any specific statutory provision. According to this text, which I accept as authoritative, when the object for which the limited grant was made is completed, application may be made for a general grant by the person entitled, no further order of the court being necessary. Although this usually occurs in the non‑contentious jurisdiction the same principles apply in relation to grants in the contentious jurisdiction, although the present proceedings are not for a grant ad colligenda bona but, rather, for a general grant, either of probate, or of letters of administration with the last will annexed or, in the plaintiff’s case, letters of administration upon an intestacy.”
D’Unienville v Sakalo [2013] WASC 469, EM Heenan J at 70
Administration ad colligenda bona defuncti – ( “for the purpose of collecting the goods of the deceased”)- refers to a special grant of administration issued by a court to protect a deceased estate when there’s a risk of lost or wasted assets before a full grant of probate or letters of administration.
In contrast, administration pendente lite—now codified in s 35 of the Administration Act 1903 (WA)—allows the court to appoint an administrator and receiver while proceedings concerning the Will or probate are ongoing. This interim role is similar to that of a receiver and is primarily custodial, aimed at preserving the estate for those eventually found entitled.
Henderson v Executor Trustee Australia Ltd [2005] SASC 477 provided a detailed analysis of administration pendente lite where several key principles emerged:
Rule 104.13 of the Supreme Court Rules. Rule 104.13 states:
- (1) Application to appoint an administrator pendente lite Where a proceeding is pending touching the validity of the will of the deceased person or for obtaining or revoking any grant of probate or administration, application may be made for the appointment of an administrator pendente lite.
- (2) Affidavit in support The application shall be supported by an affidavit.
- (3) Powers of the administrator subject to directions of the Court Where the Court appoints an administrator pendente lite:
- (a) he shall have all the rights and powers of a general administrator other than the right of distributing the estate;
- (b) he shall be subject to the immediate control of the Court and act under its direction;
- (c) his powers shall cease with the making of the final order in the action or on the making of any further order of the Court directing that his powers cease;
- (d) the Court may direct that the administrator receive out of the estate of the deceased such reasonable remuneration as the Court thinks fit.
The probate action must be pending (The Public Trustee in and for the State of Western Australia v Seow [2003] WASC 62), but anyone can apply. However, the court may appoint a party to the dispute as administrator only in exceptional circumstances.
Finally, although s 35 distinguishes between administrators of personal estate and receivers of real estate, this has little practical consequence in modern proceedings.
The court’s inherent power to make limited grants of administration is well established and as recognised in Greenway v McKay (1911) 12 CLR 310 at 315.
“it must be shown that the estate was in jeopardy—and that it was necessary to make the order for its protection.”
Background
Giuseppe Moscufo died on 6 March 2022, survived by his wife Emilia (who died in January 2024) and two sons: Nicolo (deceased) and Enzo(the defendant). Giuseppe’s grandchildren—Simmone (the plaintiff), Daniel, and Adam—are Nicolo’s children. On 21 February 2021, Giuseppe executed a new Will (the 2021 Will), appointing the plaintiff as executrix and enduring power of attorney for Giuseppe and Emilia.
In Simmon Maree Moscufo as executrix of the will of Guiseppe Moscufo -v- Moscufo [2024] WASC 404, the plaintiff applied for probate of the 2021 Will in December 2022. The defendant filed a caveat and counterclaimed for probate of an earlier 1987 Will, which appointed him and his deceased brother as executors. Both Wills left Giuseppe’s estate to Emilia, so the legal personal representative of the estate is the main point of contention.
The principal asset of the estate is a property in Woodbridge, WA, initially valued at $800,000 but later formally revalued at $500,000. Other significant estate assets include a $150,000 nursing home bond.
Due to the delay and the estate’s condition, the plaintiff applied for the appointment of independent solicitor Mr Ian Blatchford as interim administrator and receiver under s 35 of the Administration Act 1903 (WA). Both parties agreed to his appointment but disagreed on the scope of his powers.
The background to the proceeding clarifies the differing approaches the parties took concerning the interim administrator and receiver of the deceased’s estate’s scope of powers.
The plaintiff’s evidence highlighted issues with the Woodbridge property: it is vacant, deteriorating, costly to maintain and insure, and subject to safety concerns and break-ins. There is also a risk of unnecessary capital gains tax if not sold promptly. These burdens are currently falling on the plaintiff.
The plaintiff‘s Proposal:
The plaintiff requested that the interim administrator and receiver be empowered to:
- 1. Sell the Woodbridge property and exercise any necessary ancillary powers;
- 2. Deal with the deceased’s personal property, including recovering a refundable aged care bond held by Regis Greenmount and
- 3. Consolidate all estate funds and proceeds from asset realisation.
The defendant’s Proposal:
In contrast, the defendant proposed more detailed and specific powers, including:
- 1. Engaging a town planner and valuer to assess the property’s zoning potential to maximise its market value and
- 2. Investigating the estate’s assets and their use or distribution, reflecting the defendant’s concerns about the plaintiff’s handling of the deceased’s finances.
The defendant’s submissions reflected a desire to ensure the Woodbridge property’s potential for subdivision was explored before any sale. The defendant submitted there was no urgency to sell, given the availability of the $150,000 refundable bond to cover expenses.
However, counsel for the plaintiff responded that the proposed orders would not restrict the administrator and confirmed the plaintiff’s willingness to cooperate with any legitimate inquiries.
Court’s Consideration and Orders:
The Court found it necessary to appoint Ian Blatchford, a highly experienced practitioner, as administrator and receiver under s 35 of the Administration Act 1903 (WA). The Court held it was neither necessary nor appropriate to micromanage his duties or impose constraints suggested by the defendant, especially given the absence of evidence to support his suspicions about the plaintiff.
The Court, therefore, adopted the plaintiff’s proposed orders with two adjustments:
• Removal of the phrase “limited to” to avoid inadvertently narrowing the scope of the administrator’s discretion and
• Adjusting reporting obligations, requiring reports six months after appointment and annually.
Costs:
The plaintiff’s application was found to be correctly brought, and the Court awarded costs on an indemnity basis from the estate. The defendant, whose opposition was largely unsuccessful, was ordered to bear his costs.
Court Orders:
1. Mr Blatchford was appointed as administrator and receiver of the estate pending final resolution of the dispute.
2. He was authorised to:
• Sell the Woodbridge property;
• Collect personal property and the aged care deposit;
• Consolidate estate funds;
• Use estate funds to pay debts, including sale costs, his fees (with notice), and the plaintiff’s legal costs;
• Deposit funds into an interest-bearing account.
3. Mr Blatchford must provide an estate inventory and accounts every 6 and 12 months.
4. The estate covers the plaintiff’s application costs, including the valuation fee.
5. The defendant bears his costs.
The defendant did not contest the need for an appointment but questioned the property valuation and expressed concerns—without substantiating evidence—about the plaintiff’s financial management while acting under power of attorney.
The defendant previously raised issues in the State Administrative Tribunal but withdrew those proceedings. The defendant’s underlying distrust of the plaintiff was evident, though not supported by material before the court.
The plaintiff submitted evidence of her close relationship with her grandparents and her involvement in preparing and executing the 2021 Will, which was witnessed by two registered pharmacists at a local pharmacy. The plaintiff’s evidence confirmed the Testator’s testamentary capacity, knowledge, and approval of the 2021 Will’s contents.
Following a compromise, the plaintiff renounced her executorship, and the parties agreed probate would proceed in solemn form with the appointed administrator and receiver of the estate pending the final resolution of the dispute.
Issue
The valid execution of the 2021 Will was validly executed and should be admitted to probate in solemn form despite the parties reaching a compromise.
Decision
Solomon J held that the testator duly executed the 2021 Will under the Wills Act 1970 (WA). There was no evidence to rebut the presumption of due execution, testamentary capacity, and knowledge and approval.
The Court applied the principles in Wheatley v Edgar [2003] WASC 118, confirming that proof in solemn form requires evidence of due execution and testamentary capacity, notwithstanding a compromise.
The plaintiff’s evidence, supported by the pharmacist witnesses, established the Testator’s understanding of the Will and intention to make it.
Orders:
- The 2021 Will of Guiseppe Moscufo, dated 21 February 2021, was declared valid and operative.
- Probate in solemn form granted, with letters of administration with the will annexed issued to Mr Ian Blatchford under s 36 of the Administration Act 1903 (WA).
- There was no cost order; the Court vacated previous cost orders.
Significance:
This case confirms that where parties compromise probate proceedings, the court must still be satisfied with the evidence of due execution and testamentary capacity before granting probate in solemn form. The decision reinforces procedural safeguards in contested probate matters and the application of the presumptions arising from the proper execution of a Will.
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