Murdoch and Brown (No. 2)

In *Murdoch & Brown (No. 2)*, the Family Court of Australia considered an application by the wife for interlocutory orders, including injunctions against the respondent executors of her deceased husband's estate. The central issue arose from a preliminary point taken by the respondents, who argued that an order made by a registrar, appointing them as legal personal representatives of the deceased, was invalid because no grant of probate had yet been issued by the Supreme Court of Victoria. The respondents sought to discharge this order, proposing its reinstatement only after probate was granted.

The court was required to determine whether a legal personal representative could be formally appointed or recognised in Family Court proceedings before a grant of probate had been obtained. This involved considering the source of an executor's authority and the role of a grant of probate in authenticating that authority, particularly in the context of Family Court Rules and relevant case law. The court also had to assess whether the existence of a limited grant *ad colligenda bona* affected the respondents' capacity to act.

Justice Cronin, agreeing with the wife, reasoned that an executor derives their power and responsibility from the will itself, not from the grant of probate. The grant of probate serves as formal authentication of the executor's role, particularly if the will's authority is challenged. However, where there is no dispute regarding the validity of the will or the appointment of the executors, as was the case here, the absence of a grant of probate does not invalidate procedural orders made by the court. The court distinguished this situation from cases where a dispute about the executor's entitlement necessitates a stay pending the grant of probate. The court found that the Family Law Rules do not mandate a grant of probate for procedural orders, and that an executor can commence or continue proceedings in their capacity based on the will, provided their entitlement is not challenged.

Consequently, the application to discharge the registrar's order was dismissed, and the application for a stay of proceedings was refused. The interlocutory applications concerning the solicitors for the estate and the enforcement of extant orders were adjourned to a later date.