MacDonald v MacDonald

This matter principally involved an application to appoint an administrator pendente lite for an estate where litigation was pending. His Honour considered whether the estate’s interests were best served by the applicant, one of the deceased’s sons and a co-executor, acting as administrator, or alternatively an independent person who the respondent nominated. Having regard to the principles relevant to making such appointments, and noting the applicant’s particular suitability and expertise in a farming property which was a substantial asset of the estate, his Honour exercised the discretion in the applicant’s favour.

Freeburn J

30 June 2023

The deceased, a widow, was survived by four children. [1]. Her two sons were co-executors. One son, the applicant, applied for a grant of probate, with leave reserved for the other son, the respondent. The respondent filed a caveat alleging a lack of capacity or suspicious circumstances relating to the deceased’s will. [3]. The estate itself was considerable with its net value estimated at approximately $5,413,932. It included a half interest in two cattle properties. [5], [11]. There was the likelihood of a solemn form probate application pending. [4], [12].

The appointment of an administrator pendente lite

Rule 638 Uniform Civil Procedure Rules 1999 enables a court to appoint an administrator for an estate pending the outcome of probate proceedings on a limited basis, imposing conditions which it considers appropriate. Such appointments are not routinely granted. Their role is to get in the assets of the estate, manage them, and preserve them. [14]. The applicant sought appointment as the administrator pendente lite, [15], whilst the respondent contended that an independent person should be appointed to the role. He nominated a solicitor experienced in the area of succession and estates. Alternatively, he sought the joint appointment of himself and the applicant. [16].

The applicant proposed that on the facts of the estate he was an appropriate appointee, noting that whilst it was once the case that courts would be disinclined to appoint an executor under a disputed will, that is no longer a hard and fast rule and modern cases focus more upon whether there would be an adverse impact on the estate: see Jones v Toomer [2021] WASC 207, [19]–[20]. The respondent argued that as a general rule, it is preferable to appoint a person who is detached from the action as administrator pendente lite and it is in fact the case that the appointment of one of the parties to the litigation is limited to “quite exceptional” circumstances: see Hempseed v Ward [2013] QSC 348 and Tomkinson v Hersey (1983) 34 SASR 181. [17], [18].

The principles governing making a limited grant of appointment of an administrator of a deceased estate pendente lite

Upon reviewing the applicable case law, his Honour held that (allowing for semantics) there is no such general rule, but rather a broad discretion “that is subject to the particular circumstances and the good sense and practicalities of the particular appointment”. [26]. He summarised the factors underpinning that discretion as including:

(a)It is advantageous and helpful to have the estate administered by someone who is external to the litigation;

(b)The scope of the issues in dispute;

(c)The nature of the tasks required of the administrator;

(d)The candidate’s suitability and qualifications;

(e)Any cost or other practical advantages or disadvantages together with the views of the beneficiaries and the choice of executors made by the deceased;

(f)The purpose of the appointment. [25].

In his Honour’s view the proposition that there is a general rule that a party to the substantive litigation should not be appointed as the administrator pendente lite except in “quite exceptional” circumstances is problematic since such an approach is reliant upon a largely subjective assessment as to what amounts to “quite exceptional” circumstances. Rule 638 UCPR is not drafted in that way. Furthermore, the case law indicates the courts are more inclined to tailor the discretion to the circumstances of each case (whilst reflecting the obvious advantage of an administrator who is independent). [27].

Application of the principles to the current matter

It was apparent that, unlike the applicant, the respondent’s nominee did not appear to possess any knowledge of cattle or livestock properties which would be directly beneficial in the event he was appointed. In his Honour’s view, that was a “central problem”. He noted:

“There is no evidence that he has any knowledge of these specific properties. It [is] not said that he has even set foot on Moorfield. Nor is there [any] suggestion that [he] is able or willing to move to Moorfield”. [33].

His Honour observed that given these matters, such an appointment could potentially result in increasing the burden already undertaken by the applicant, without any corresponding benefit. [34]. Having regard to the practicalities and the applicant’s expertise, his view was that the applicant was the preferable appointment. In forming that view, he noted that it was not in issue that the applicant was running the farming enterprise well. [38]. To alter the management of the properties at this juncture would not preserve the status quo and could result in risks to the estate. [39].

In addition, the applicant’s continued management was unlikely to conflict with scope of the foreshadowed litigation, [41], and whilst it was unclear what cost the retention of the solicitor to manage the estate would entail, the applicant had worked on the property at no cost to the estate at all. [43], [44].

Disposition

The applicant was appointed as administrator pendente lite to continue managing the properties.

A Jarro