In the Estate of Cervo
[2023] ACTSC 283
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the Estate of Cervo |
Citation: | [2023] ACTSC 283 |
Hearing Dates: | 6 October, 10 October 2023 |
Decision Date: | 11 October 2023 |
Before: | Taylor J |
Decision: | See [48]-[49]. |
Catchwords: | SUCCESSION – EXECUTORS AND ADMINISTRATORS – Application for special administration ad colligenda bona defuncti or appointment of administrator pendente lite– suitability of applicant to be appointed administrator pendente lite |
Legislation Cited: | Administration and Probate Act 1929 (ACT), ss 9(1), 23 Probate and Administration Act 1898 (NSW), s 73 Uniform Civil Procedure Rules 1999 (Qld), r 638 |
Cases Cited: | Angus McInnes MacDonald (as one of the executors of the will of Muriel Ann MacDonald deceased) v Hamish MacDonald (as one of the executors of the will of Muriel Ann MacDonald deceased) [2023] QSC 149 Estate Ritossa, Deceased [2022] NSWSC 1083 Gooley v Gooley [2020] NSWSC 798 Gray v Hart [2010] NSWSC 55 Hempseed v Ward [2013] QSC 348 Tomkinson v Hersey (1983) 34 SASR 181 |
Parties: | Angelo Didio ( Plaintiff) Ian Julien ( Defendant) |
Representation: | Counsel Danny Moujalli ( Plaintiff) Kerin Cotchett ( Defendant) |
| Solicitors Thomson Geer ( Plaintiff) Elringtons Lawyers ( Defendant) | |
File Numbers: | PRO 476, 1040 of 2023 |
TAYLOR J:
Introduction
1․This is an application in relation to the estate of Mrs Margaret Anne Cervo and Mr Renato Cervo. The applicant, Mr Angelo Didio, pursuant to ss 9(1) or 23 of the Administration and Probate Act 1929 (ACT) (the Act) seeks to be appointed as a special administrator ad colligenda bona defuncti or as an administrator pendente lite in relation to both estates.
Background
2․It is necessary to summarise some of the history relevant to the application. On 2 May 2019, Mr Cervo executed a valid will ("the Renato Cervo Will”),
3․The Renato Cervo Will appointed his wife, Mrs Margaret Cervo as executor and named her as the beneficiary of one half share of his estate. Additionally, the Renato Cervo Will made provision for, among other matters, his daughter, Ms Gina Cervo (who is the step-daughter of Mrs Cervo). The Renato Cervo Will directed the executor to employ the services of Mr Ian Julien as the solicitor for the estate.
4․Mr Cervo died on 24 December 2022, aged 89 years. A grant of probate was issued by the Court to Mrs Cervo on 31 May 2023.
5․Mrs Cervo executed a Will (“the First Will”) on 18 April 2023 in which she appointed Mr Julien as the executor of her estate. Mr Julien is also a residuary beneficiary under the terms of that will. So too is the applicant in these proceedings.
6․Shortly thereafter on 16 May 2023 Mrs Cervo executed another Will (“the Second Will”) in which she revoked all former wills and testamentary dispositions and appointed a new executor, namely the applicant. The applicant is also 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 Mr Julien. 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).
7․On 6 June 2023, Mrs Cervo made an Enduring Power of Attorney, appointing the applicant as her attorney. On 15 June, Mr Julien issued a letter to the applicant signed by Mrs Cervo purporting to revoke the Enduring Power of Attorney. Mrs Cervo died on 30 August 2023, aged 93 years. Mrs Cervo did not have any children. Before her death the administration of the Renato Cervo Will had not been fully completed.
8․On 25 September 2023, a caveat was filed on behalf of Mr Julien to prevent the Court from granting probate in relation to the Second Will. It is accepted as between the parties that this will necessarily result in a delay in obtaining a normal grant of probate and that the question of the validity of the Second Will is in issue. The caveat states:
Nature of Caveator
The Caveator is the executor, and a person entitled in the distribution of the deceased person’s estate, pursuant to a Will dated 18 April 2023.
Grounds of Caveator’s Objection
1. The testator lacked testamentary capacity at the time of the execution of the Will dated 16 May 2023.
2. The testate award did not have knowledge and approval of the contents of the will dated 16 May 2023.
3.The testator was subject to the undue influence of Angelo Didio in the making of the will dated 16 May 2023
9․There is currently no executor or administrator to administer Mrs Cervo’s and/or Mr Cervo’s estates. The estimated net value of Mr Cervo’s estate in the ACT is approximately $26,245,458.79. The estimated net value of Mrs Cervo’s estate in the ACT is approximately $40,376,869.43 (without accounting for expenses incurred after her death). Plainly, Mrs Cervo’s estate has a beneficial interest in the estate of her late husband.
10․A number of affidavits were filed and read by the applicant in support of his application, two sworn by him on 4 October 2023 and others affirmed by the solicitor acting for the applicant, Ms Lauren Mary Babic.
11․The caveator, Mr Julien, was represented in these proceedings. It was helpfully indicated at the outset that he consented to the Court appointing an administrator pursuant to s 23 of the Act pending the litigation in relation to the validity of the Second Will. It is the appointment of the applicant to the role of administrator that Mr Julien contends is not appropriate in the circumstances.
Legislation
12․Section 23 of the Act states:
23Administration pendente lite and receiver
(1)The Supreme Court may–
(a)Pending any suit touching the validity of the will of any deceased person, or for obtaining recalling, or revoking any probate or any grant of administration; or
(b)During a contested right of administration;
appoint an administrator of the personal estate and the same or any other person to be receiver of the real estate of any deceased person, with the full or limited powers that the court considers appropriate.
(2)The Supreme Court may make the orders for the remuneration of the administrator or receiver out of the personal and real estate of the deceased person it considers right.
Consideration
13․There is no statutory criteria or considerations identified in the Act to which the Court must have regard before making an order pursuant to s 23. I was not provided with any authorities from this jurisdiction in relation to an application of this kind. I was helpfully provided with a number of authorities from other jurisdictions where the issue has been considered.
14․Before turning to those authorities, it is useful to set out a number of matters that are relevant to the application before the court and do not immediately appear to be in contest.
15․Firstly, the applicant is a bankrupt from 8 May 2018 discharged on 9 May 2021.
16․Secondly, the size of the estates involved, on any view, are very significant. Other than the applicant there are a total of six residuary beneficiaries of Mr and Mrs Cervo’s estates. The applicant has provided copies of emails sent to the residuary beneficiaries from his solicitors seeking their views on the appointment of him as the administrator. Those emails identify for the residuary beneficiaries that there is some contest in relation to the validity of the Second Will and include a disclosure that the applicant has previously been a bankrupt which came to an end in May 2021.
17․Leaving aside for the moment Ms Brenda Mitchell, five residuary beneficiaries have indicated in response to those emails that they do not object to the applicant being appointed as the administrator pending litigation. The prospect of an alternative administrator, namely Ms Tamara Goodwin, a solicitor who routinely accepts such appointments was canvassed and there was no objection raised by any of the five residuary beneficiaries to the appointment of Ms Goodwin should the applicant not be appointed.
18․Ms Brenda Mitchell, who apparently is Mrs Cervo’s last remaining sibling and who I have already identified has significant provision made for her under the terms of both the First Will and the Second Will made contact via email with the applicant’s solicitors in the early hours of 10 October 2023. The email from Ms Mitchell expresses some hesitation in agreeing to any appointment. In the email Ms Mitchell states that she has not seen a copy of the Second Will but that she understood that she was Mrs Cervo’s “main heir” because Mrs Cervo had told her so and because she had received a copy of the First Will. Ms Mitchell requests further information from the applicant’s solicitors including “how and why the will(s) are being contested, if indeed that is the case”. The applicant’s solicitors responded to that email from Ms Mitchell providing further information including the content of the caveat. By the time the matter came on for hearing before me on 10 October, no further response had been received from Ms Mitchell.
19․The significant extent of the estates is referred to at paragraph 15 of the Affidavit-General sworn by the applicant on 4 October 2023. The estates include numerous properties across the ACT, NSW and Victoria as well as a property in New York, USA and property in Italy.
20․The affidavit sets out in some detail matters connected to the estates which require immediate attention in order to protect the value of the estates. For example, one of the properties in the ACT requires a commercial lease to be managed in order that a tenant attend to make good requirements before the end of the lease. A number of the properties were the subject of negotiations in relation to leasing prior to Mrs Cervo’s death. Those negotiations need to be completed. In another instance lawyers acting for a tenant are seeking the return of a bank guarantee in the sum of $41,800. The applicant also cites the requirement for invoices relevant to numerous properties to be settled. The sale of a property referred to as “Cervo House” also needs to be progressed and there are a number of properties that require payments in relation to insurance, rates and land tax. There are also numerous outstanding invoices totalling a sum of well over $100,000 for Mr Julien’s fees in relation to his role as the solicitor for the administration of the Renato Cervo Will and services provided to Mrs Cervo. The applicant states that until those fees are paid Mr Julien will not release the files relevant to the estates.
21․Clearly then, 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 estates (the return of the bank guarantee, for example). Arising from the nature of those matters there is some urgency involved in the outcome of this application.
22․It is accepted by the applicant that, at least at this stage, the caveat filed by Mr Julien will result in litigation necessary to determine the validity of the Second Will. The parties agree that this litigation is likely to involve protracted proceedings and that a usual grant of probate is unlikely.
23․During the course of the hearing the applicant refined his position to suggest that he be appointed in the first instance on an interim basis with a further hearing date to be set and a timetable ordered for the caveator to file and serve any evidence in support of his objection to the applicant being appointed until the litigation is resolved. The caveator opposed this course.
24․In support of his application to be appointed administrator the applicant identifies the following matters as favouring the appointment he seeks:
(i)he is familiar with the nature and extent of the estates involved and the specific matters that require immediate attention (such as those I have just referred to at paragraph 21) having been involved in the management of the property portfolio prior to the deaths of Mr and Mrs Cervo;
(ii)he resides close to the ACT, in Googong, NSW, so can efficiently and effectively attend to those matters without delay
(iii)the Second Will, subject to the caveat filed by Mr Julien, was executed in the presence of a solicitor, Mr Russell Patrick, and the circumstances leading up to the creation of the Second Will are explained in his affidavit. Those circumstances are described as a misunderstanding on Mrs Cervo’s part about the inclusion of Mr Julien in the First Will and a desire from her to see him removed once she understood the terms of the First Will. The applicant highlights that the caveator has not put on any evidence in support of the grounds of the caveat or in opposing this application; and
(iv)he is not proposing to charge the estates should he be appointed as administrator.
25․The caveator, Mr Julien, submits:
(i)the appointment of an administrator pendente lite is appropriate and necessary in the circumstances;
(ii)the applicant is not an appropriate person to be appointed in light of the pending litigation (even on an interim basis);
(iii)the appropriate person to be appointed as administrator until the litigation contesting the Second Will is determined is Ms Tamara Goodwin a solicitor independent of either party who is willing, able and qualified to accept the appointment;
(iv)appointing an administrator on an interim basis (whether the applicant or some other person) and adjourning this application for further evidence to filed by Mr Julien (as suggested by the applicant) is unnecessary in circumstances where that evidence is inextricably linked to the evidence to be relied upon in the substantive litigation challenging the validity of the Second Will and an interim appointment will only generate further unnecessary litigation to the detriment of the estates. The caveator submits that the “cleanest” approach is to appoint an independent person until the litigation challenging the Second Will is determined;
26․For the reasons that follow I will make orders appointing an administrator pendente lite pursuant to s 23 of the Act. Despite the helpful and able submissions of Mr Moujalli on behalf of the applicant for the reasons that follow I do not consider it appropriate for the administrator to be the applicant or for the appointment to be made on a limited, interim basis with another hearing set for the Court to further consider the question.
27․The applicant indicated that should his application to be appointed administrator fail, he has no objection to the appointment of Ms Goodwin to the role accepting she was an appropriate person to be appointed as an admitted solicitor with specific qualification and experience in the administration of estates.
The appointment of an administrator
28․The Act clearly creates a power at s 23 for the Court to make the appointment sought. That said, it is also clear that such an appointment is discretionary and not necessarily made in every case where litigation is pending.
29․In Estate Ritossa, Deceased [2022] NSWSC 1083 Lindsay J said at [21]:
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 73 of the Probate and Administration act 1898) 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 for the appointment of an interim administrator advances the due and proper administration of the estate and the interests of persons beneficially entitled to the estate.
30․In Gooley v Gooley [2020] NSWSC 798 (Gooley) at [125]-[126] Williams J, considering an application seeking relief including an order pursuant to s 73 of the Probate and Administration Act 1898 (NSW) (the NSW Act), observed the following (citations omitted):
In my opinion, ... [a search for a] “necessity” or “sufficient reason” for the appointment of an administrator pendente lite is directed to a need for the Court to be satisfied that, in all the circumstances of the case, the assets of the deceased estate are in some jeopardy, and the appointment of an administrator pendente lite will remove, or at least reduce, that jeopardy. As the plaintiffs’ submissions acknowledged, it is not necessary that the jeopardy arise from some misconduct on the part of a person dealing with or claiming to preserve the assets of the deceased estate.
The object of an appointment of administrator pendente lite is to ensure that the deceased estate is managed and preserved for the benefit of those persons who many ultimately be found in the suit to be entitled to it. The administrator is required to act impartially as between the potential beneficiaries. Section 73 of the PA Act allows the Court to mould the powers of the administrator in a manner best designed to achieve that object in the specific circumstances of the case.
31․Section 73 of the NSW Act is in almost identical terms to s 23 of the Act.
32․Independent of the concession from the caveator, Mr Julien (though noting it was immediately forthcoming), I am satisfied that the material before the court on this application firmly establishes the need for an administrator to be appointed pending a suit touching the validity of the will in order to promote the proper administration of the estates, the preservation of the assets of the estates and the interests of persons who will benefit from the estates. The estates are significant with numerous interests that I am satisfied if left unattended could jeopardise the estates to the detriment of the beneficiaries.
The identity of the administrator
33․In Gooley, Williams J referred to Gray v Hart [2010] NSWCC 55, a matter where the Court was asked to make an order pursuant to s 73 of the NSW Act in circumstances where the parties agreed the order was appropriate though like here, were in dispute about the identity of the administrator to be appointed. Justice Williams observed at [124]:
…[H]is Honour declined to appoint either of the prospective administrators nominated by the parties on the basis that they had not been shown to be suitability qualified and independent of the parties. In relation to the importance of the independence of an administrator pendente lite, his Honour said (at [10], omitting citations):
If the estate is in contest between beneficiaries under competing wills, there will often be mutual distrust and hostility in the administration of the estate if one of the contestants, or a person apparently biased towards one of them, is appointed administrator. That circumstance will often generate needless litigation to the detriment of the estate. That is why the Court generally prefers an administrator independent of both sides of the dispute.
34․I was helpfully provided a judgment of the Supreme Court of Queensland, Angus McInnes MacDonald (as one of the executors of the will of Muriel Ann MacDonald deceased) v Hamish MacDonald (as one of the executors of the will of Muriel Ann MacDonald deceased) [2023] QSC 149. Justice Freeburn identifies factors relevant to the question of who might be appointed as the administrator of an estate in circumstances where litigation directed towards the validity of a will is pending.
35․Justice Freeburn, referring to Hempseed v Ward [2013] QSC 348 and Tomkinson v Hersey (1983) 34 SASR 181 (Tomkinson), identifies what was referred to in the matter as the “the general rule” that a person unconnected with the suit touching the validity of a will is the most suitable person to be appointed as administrator pendente lite.
36․His Honour extracts the following observation from the judgement of Cox J in Tomkinson where his Honour said at 184:
It is hardly surprising that the text books and the few reported decisions on the question are generally opposed to the notion of appointing as an administrator pendente lite someone who is personally and actively involved in the lis itself. The desirability of having the estate administered by someone who stands quite outside the litigious battle is obvious. The cases to support the Acting Master’s conclusion that, as a general rule, a person unconnected with the action is the most suitable person to be appointed as administrator pendente lite.
37․His Honour went on to highlight that Cox J considered that the circumstances would need to be “quite exceptional” for a person connected to the suit to be appointed as administrator saying:
To follow the established and, in my view, sound practice of not making such an appointment unless the case is an exceptional one is not to prejudge the issue between the litigants or to reflect in any way upon the good name of the applicant. It is merely to ensure that the administrator remains aloof from the court proceedings and indifferent to their outcome.
38․Having identified those extracts Freeburn J nonetheless determines that the discretion available to the court to appoint an administrator pendente lite pursuant to rule 638 of the Uniform Civil Procedure Rules 1999 (Qld) is not constrained by a “general rule” or a requirement to demonstrate “exceptional circumstances”. Rather his Honour considered the court retained a broad discretion “subject to the particular circumstances and the good sense and practicalities of the particular appointment”. He identified a range of factors relevant to the discretion to appoint a particular person as an administrator pendente lite. Absent an authority from this jurisdiction, which neither party provided nor was I successful in locating, I consider the following factors identified by his Honour at [25] to be useful considerations for the purposes of determining the outcome of this application:
(a)it is desirable and there is an obvious advantage in having the estate administered by someone who stands quite outside the litigious battle;
(b)a factor to consider is the nature and extent of the issues to be fought in the litigation;
(c)another factor is the nature of the title tasks required of the administrator - a confined task or a task confined to managing a specific asset will involve different considerations compared with the broad management of complex estate;
(d)it is relevant to consider the candidate’s suitability and qualifications for the role;
(e)any cost or other practical advantages or disadvantages is a factor to consider, as well as the views of the beneficiaries and the choice of executors made by the deceased;
(f)at the core of the discretion, of course, is the purpose of the appointment, namely for the benefit of the estate to get in the assets of the estate manage them and preserve them.
39․To be clear, I have not approached this application on the basis that there is a “general rule” or a requirement to establish “exceptional circumstances” before a person connected to the litigation challenging the validity of a will could be appointed administrator pendente lite. Neither party suggested I should. I have carefully considered all of the material and the specific factors relevant to this particular matter in reaching the determination that I consider appropriate.
40․While it is true that at this stage, Mr Julien has not put on any evidence in support of his contention that the applicant is not a suitable person to be appointed nor any evidence in relation to the grounds of the caveat, it is nonetheless clear that at the heart of his contest to the validity of the Second Will is the credibility, reliability and motivations of the applicant. Without making any assessment at all of the strength of those grounds, what is clear is that the applicant will be a central figure in the suit touching upon the validity of the will. It could not be said that the applicant is a person who will be unconcerned with, or independent of, the substantive litigation. In my view this is a consideration that weighs against the applicant’s appointment as administrator.
41․Secondly, in the context of what are significant estates, with by way of example, multiple properties requiring the negotiation of contracts, the sale of properties and the assessment of interests under commercial leasing arrangements there is no evidence that would allow me to assess the applicant’s qualifications, skills or experience to undertake these kinds of potentially complicated tasks. He has engaged a solicitor in relation to all of these matters, but the complexity and extent of the estate will nonetheless demand understanding on his part of the kinds of matters to which I have just referred. The evidence demonstrates that the assistance the applicant provided to Mr and Mrs Cervo in relation to the properties, generating the familiarity with the properties he relies upon, was largely physical maintenance of the properties and personal assistance to Mrs and Mrs Cervo. This is consistent with the way he describes his relationship with Mr and Mrs Cervo beginning – when his wife’s business was engaged to perform cleaning duties.
42․The applicant describes himself as working in the cleaning business owned by his wife and as having familiarity with the physical maintenance required at the commercial properties identified to him by Mr Cervo. He does not describe any particular experience, skills or qualifications that might be said to position him to take on the role of administrator for two vast estates. He is a person who has in the last five years, been a bankrupt indicating, at least, at some point in 2018 financial struggles sufficient for that to be the case, only ending in 2021. As has been identified, the role of the administrator in this instance will require broad management of substantial estates including numerous commercial properties across three states and at least two properties located overseas. In my view these are matters that weigh against the applicant’s appointment as administrator.
43․The familiarity of the applicant with some of the properties and the ease and speed with which he could attend to some of the outstanding tasks as well as his intention not to seek payment are considerations that weigh in favour of his appointment. I make it clear that I have not approached the question of cost to the estate without real care. While the estate is significant the incursion of unnecessary costs in nonetheless a relevant factor. I have also borne in mind the fact that under both iterations of Mrs Cervo’s 2023 Wills the applicant is a residuary beneficiary and so could be said to be motivated to preserve and protect the value of the estates. I have also taken into account, leaving aside the silent position of Ms Mitchell at this stage, that the other residuary beneficiaries do not object to the applicant being appointed. These are all matters that weigh in favour of the applicant. I do note though, that it is Ms Mitchell who of all of the residuary beneficiaries has the most significant provision made in her favour and she has yet to indicate a firm position.
44․Ultimately, I consider that the nature of the contest as between the parties, as set out in the grounds of the Caveat (without drawing any conclusion about the strength of those grounds), in combination with the complexity of the vast estates is a compelling and significant consideration that weighs against the appointment of the applicant.
45․It is my view, having carefully considered the material including the affidavits filed in support, the grounds of the caveat, the nature and extent of the estates as well as those matters I have identified above, that the applicant should not be appointed as the administrator.
46․I do not consider an appointment on an interim basis, of anyone, with a further hearing after the caveator files and serves evidence in support of his position to be the appropriate course. The general nature of the contest is clear and to adopt this course creates unnecessary litigation that would see the issue to be ultimately determined fragmented. The orders I make will allow the parties, should a circumstance arise providing a basis for the Court to revisit the appointment and/or the identity of an administrator, liberty to apply to the Court on seven days notice.
47․In view of the applicant’s position that Ms Goodwin is a suitable alternative I will make orders giving effect to her appointment the terms of which have been agreed between the parties.
Orders
PRO 476 of 2023
48․I order that:
(1)Subject to further orders of this Court, Tamara Jayne Goodwin be appointed as:
(a)administrator pendente lite of the personal estate; and
(b)receiver of the real estate
of the late Renato Antonio Cervo late of 8 Wickham Crescent, Red Hill in the Australian Capital Territory
(2)Tamara Jayne Goodwin shall have the following powers:
(a)general powers:
(i) in the name, and on behalf, of the estate of the deceased, to receive and give a discharge for all money and property to which the estate of the deceased is, or may become, entitled;
(ii) to do all such acts and things to execute for and on behalf of the estate of the deceased any and all documents relating to the estate’s property;
(iii) to take custody of all papers and documents belonging to the estate of the deceased; and
(iv) to furnish all necessary income tax, land tax and other returns;
(b)to carry on and manage investment powers, including but not limited to holding any existing investments of the estate of the deceased other than cash in the present form of investment;
(c)accounting and banking:
(i) to operate an account in the name of the estate of the deceased as trustee for the deceased as a working account and, in the first instance, to credit all income and other monies to such account and pay all expenditure, as defined below, therefrom; and
(ii) to keep proper accounts and vouchers, and every three months, to provide an interim financial report in writing to the solicitors for the parties and the beneficiaries of the estate relating to the administration of the estate of the deceased;
(d)expenditure powers, viz, to pay:
(i) the debts general and testamentary expenses and any other liabilities of the estate as and when they fall due;
(ii) all expenses necessary and properly incurred and incidental to the management of the estate of the deceased and the deceased’s assets;
(iii) to employ the deceased's accountant, RSM, to carry out accounting and taxation duties and to pay the reasonable fees of such accountant;
(iv) to pay all income, land and other tax as properly payable in respect of the estate’s income and property;
(v) to pay municipal, water and sewage rates and charges and strata levies in respect of the real estate owned by the estate of the deceased;
(vi) to pay all insurance premiums;
(vii) to arrange for and pay normal repairs and maintenance as are necessary to maintain the real estate of the estate of the deceased in good condition;
(viii) the legal fees and disbursements calculated on an indemnity basis of:
i.the executor named in the Will of the Margaret Anne Cervo made on 16 May 2023; and
ii.the caveator, Ian Julien
in relation to the application in proceeding filed on 5 October 2023 in ACT Supreme Court proceeding number PRO 476 of 2023 performed until the date of these orders; and
(ix) the legal fees and disbursements calculated on an indemnity basis of the executor named in the Will of the late Margaret Anne Cervo made on 16 May 2023 in relation to the administration of the deceased's estate performed until these orders were entered;
(e)real estate powers:
(i) to manage and/or lease the deceased's properties;
(ii) to pay all rates and insurances with respect to the said properties;
(iii) to carry out all necessary repairs and maintenance to the said properties; and
(iv) to manage the said properties generally;
(v) to settle the sale of the property at 92 Josephson Street, Belconnen ACT 2617 (Volume 1036 Folio 74 Block 7 Section 185) and commonly known as "Cervo House"; and
(vi) to settle the sale of the property at 92 Josephson Street, Belconnen ACT 2617 (Volume 1036 Folio 74 Block 7 Section 185) and commonly known as "Cervo House".
(3)Tamara Jayne Goodwin shall be entitled:
(a)to make and be paid from the estate all usual and proper charges at the usual hourly rates charged by the legal practice in which she is engaged and on the usual terms as to payment of that practice:
(i) for her work as administrator or trustee of the estate, or both;
(ii) for the professional and non-professional services rendered by her or that legal practice in the administration of the estate of the deceased or the trusts of the will, or both; and
(b)to engage the services of any other legal practitioner, accountant or other professional adviser in relation to the administration of the estate where she considers it necessary to do so and to pay from the estate the costs incurred in having those services provided.
(4)Tamara Jayne Goodwin, Angelo Didio, the caveator and the beneficiaries of the deceased's estate have liberty to apply to the Court on 7 days' notice.
PRO 1040 of 2023
49․I order that:
(1)Subject to further orders of this Court, Tamara Jayne Goodwin be appointed as:
(a)administrator pendente lite of the personal estate; and
(b)receiver of the real estate
of the late Margaret Anne Cervo late of 8 Wickham Crescent, Red Hill in the Australian Capital Territory.
(2)Tamara Jayne Goodwin shall have the following powers:
(a)general powers:
(i) in the name, and on behalf, of the estate of the deceased, to receive and give a discharge for all money and property to which the estate of the deceased is, or may become, entitled;
(ii) to do all such acts and things to execute for and on behalf of the estate of the deceased any and all documents relating to the estate’s property;
(iii) to take custody of all papers and documents belonging to the estate of the deceased; and
(iv) to furnish all necessary income tax, land tax and other returns;
but however Tamara Jayne Goodwin has no power to distribute any of the estate’s property to any beneficiary under any Will made by the deceased;
(b)to carry on and manage investment powers, including but not limited to holding any existing investments of the estate of the deceased other than cash in the present form of investment;
(c)accounting and banking:
(i) to operate an account in the name of the estate of the deceased as trustee for the deceased as a working account and, in the first instance, to credit all income and other monies to such account and pay all expenditure, as defined below, therefrom; and
(ii) to keep proper accounts and vouchers, and every three months, to provide an interim financial report in writing to the solicitors for the parties and the beneficiaries of the estate relating to the administration of the estate of the deceased;
(d)expenditure powers, viz, to pay:
(i) the debts general and testamentary expenses and any other liabilities of the estate as and when they fall due;
(ii) all expenses necessary and properly incurred and incidental to the management of the estate of the deceased and the deceased’s assets;
(iii) to employ the deceased's accountant, RSM, to carry out accounting and taxation duties and to pay the reasonable fees of such accountant;
(iv) to pay all income, land and other tax as properly payable in respect of the estate’s income and property;
(v) to pay municipal, water and sewage rates and charges and strata levies in respect of the real estate owned by the estate of the deceased;
(vi) to pay all insurance premiums;
(vii) to arrange for and pay normal repairs and maintenance as are necessary to maintain the real estate of the estate of the deceased in good condition;
(viii) the legal fees and disbursements calculated on an indemnity basis of:
i.the executor named in the Will of the Margaret Anne Cervo made on 16 May 2023; and
ii.the caveator, Ian Julien
in relation to the application in proceeding filed on 5 October 2023 in ACT Supreme Court proceeding number PRO 476 of 2023 performed until the date of these orders; and
(ix) the legal fees and disbursements calculated on an indemnity basis of the executor named in the Will of the late Margaret Anne Cervo made on 16 May 2023 in relation to the administration of the deceased's estate performed until these orders were entered;
(e)real estate powers:
(i) to manage and/or lease the deceased's properties;
(ii) to pay all rates and insurances with respect to the said properties;
(iii) to carry out all necessary repairs and maintenance to the said properties; and
(iv) to manage the said properties generally;
(v) to settle the sale of the property at 92 Josephson Street, Belconnen ACT 2617 (Volume 1036 Folio 74 Block 7 Section 185) and commonly known as "Cervo House"; and
(vi) to settle the sale of the property at 92 Josephson Street, Belconnen ACT 2617 (Volume 1036 Folio 74 Block 7 Section 185) and commonly known as "Cervo House".
(3)Tamara Jayne Goodwin shall be entitled:
(a)to make and be paid from the estate all usual and proper charges at the usual hourly rates charged by the legal practice in which she is engaged and on the usual terms as to payment of that practice:
(i) for her work as administrator or trustee of the estate, or both;
(ii) for the professional and non-professional services rendered by her or that legal practice in the administration of the estate of the deceased or the trusts of the will, or both; and
(b)to engage the services of any other legal practitioner, accountant or other professional adviser in relation to the administration of the estate where she considers it necessary to do so and to pay from the estate the costs incurred in having those services provided.
(4)Tamara Jayne Goodwin, Angelo Didio, the caveator and the beneficiaries of the deceased's estate have liberty to apply to the Court on 7 days' notice.
| I certify that the preceding [49] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice Taylor. Associate: Date: |
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