MARDEN DECEASED

In the matter of Marden Deceased, the deceased died intestate, leaving behind a widow and an infant child. The principal asset of the estate was the former matrimonial home. The widow, acting as the administrator of the estate, sought to postpone the realisation of the real estate until the infant child reached the age of 18 due to insufficient cash assets to realise the infant child's share of the estate. The administrator proposed that the Public Trustee accept a 40 per cent interest in the matrimonial home as the infant child's share of the estate, which was accepted by the Public Trustee. The administrator applied for an order to postpone the realisation of the matrimonial home until the infant child turned 18.

The legal issues before the court were whether the application to postpone the realisation of the real estate until the infant child reached the age of 18 was meritorious and beneficial to the administration of the estate. The court considered the discretion under section 64 of the Administration and Probate Act and whether making an order would be advantageous to the due and proper administration of the estate.

The court held that the application was meritorious and to the advantage of the administration of the estate. The court considered the value of the property, the agreement between the widow and the Public Trustee regarding the infant child's entitlement to the estate, the avoidance of emotional upset and disruption to the family, and the lack of opposition from the Public Trustee. The court exercised its discretion under section 64 of the Administration and Probate Act and made an order allowing the administrator to postpone the realisation of the real estate until the infant child reached the age of 18. The court also made orders regarding the maintenance of the property, insurance, rates, taxes, charges, outgoings, and the deposit of the duplicate Certificate of Title and insurance policies with the Public Trustee. The costs of the application were to be paid out of the estate of the deceased.

The court's decision was based on the principle that the expression "thinks it beneficial to do so" in section 64 of the Administration and Probate Act requires a careful consideration of the facts of the particular case and the due and proper administration of the estate. The court considered the advantages and detriments associated with the provision of a guarantee and whether the making of an order would reduce the risk of maladministration or less difficulty in recovering loss and damage. The court concluded that the grant of permission would allow the widow and the infant child to continue to reside in the matrimonial home, thereby avoiding unnecessary emotional upset and allowing the continuity of ongoing family life. The court also noted that the grant of permission would avoid costs and disruptions involved in selling the property and finding new accommodation.