Salkanovic v Polites - [2025] SASC 86

SUPREME COURT OF SOUTH AUSTRALIA
(Testamentary Causes Jurisdiction)
In the Estate of FLORENCE GEMENIS POLITES
SALKANOVIC v POLITES
[2025] SASC 86
Reasons for Decision of the Honourable Justice Stanley
30 May 2025
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - LIMITED, SPECIAL AND CONDITIONAL GRANTS OF PROBATE AND ADMINISTRATION
SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - GRANTS OF PROBATE AND LETTERS OF ADMINISTRATION - ADMINISTRATION OF GOODS NOT ADMINISTERED
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - SECURITY FOR COSTS - FACTORS RELEVANT TO EXERCISE OF DISCRETION - PUBLIC INTEREST
On 5 March 2024 Florence Gemenis Polites (the deceased) died. The applicant is a beneficiary of the estate and the grandson of the deceased. The respondent is the executor of the deceased’s estate and the son of the deceased. The executor has not sought a grant of probate, claiming that he has fully administered the deceased’s estate and that it is insolvent being in deficit in an amount of approximately $2.8 million.
The applicant instituted proceedings seeking a grant of letters of administration ad colligenda bona. The applicant’s stated objective in bringing the application was to enable him to bring a claim against the estate for further provision pursuant to the Inheritance (Family Provision) Act 1972 (SA) (IFP Act) before it was repealed by the Succession Act 2023 (SA) on 1 January 2025 and for the protection and preservation of the assets of the deceased’s estate.
The respondent resisted the application and made an application seeking security for costs and a stay of the proceedings until such time as security was paid. The respondent submitted that the application was an abuse of process, a “stalking-horse” for facilitating a claim under the IFP Act and that there was no threat to any of the assets of the estate. He also submitted the Court should refuse the application because the applicant had engaged in disentitling conduct pursuant to section 7(3) of the IFP Act.
Held (dismissing the respondent’s application for security for costs and granting the applicant’s application):
1.An order for security for costs pursuant to rule 115.1(1)(a) of the Uniform Civil Rules 2020 (SA) will not be appropriate in circumstances where an applicant brings a claim for his own benefit, but incidentally in doing so, other persons will also benefit. That there may be other persons interested in the proceedings is not a sound basis for inferring that the application has been brought for their benefit.
2.The purpose of seeking an order for a grant of letters of administration ad colligenda bona in the estate of the deceased, where no grant of probate has been made, is not an ulterior purpose even if the consequence of making a grant is that the applicant will be able, as an eligible applicant, to make a claim for further provision out of the estate, once the order of appointment is made.
3.Where there are concerns about an executor’s failure to act on requests for the provision of information and documents relating to the estate, and an executor is unwilling to take a grant of probate of the will it is appropriate and proper for an applicant, being a person with an interest in the deceased’s estate to apply to the Court for an appointment of an administrator ad colligenda bona.

Succession Act 2025 (SA) Schedule 3; Inheritance (Family Provision) Act 1972 (SA) ss 7(3), 8(6); Administration and Probate Act 1919 (SA) s 69; Testator’s Family Maintenance and Guardianship of Infants Act (1916) (NSW), referred to.
Re Gilbert (1946) 46 SR (NSW) 318, applied.
Skaftouros v Dimos [2002] VSC 198; Re Estate of Ahmed Abou-Khalid (2023) 114 NSWLR 166; In the Goods of Loveday [1900] P. 154 at 156; Mataska v Browne [2013] VSC 62; Re Cohen (deceased) (2006) 95 SASR 536; Williams v Spautz (1992) 174 CLR 509; Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306, discussed.
Estate of Cockell; Cole v Paisley [2016] NSWSC 349; Cooper v Maloney (No. 6) [2012] SASC 212; In the Estate of Hilder (deceased) [1998] SASC 6549; Heydon v Perpetual Executors Trustees and Agency Code (WA) Ltd (1930) 45 CLR 111; Coshott v Sakic (1998) 44 NSWLR 667; Calokerinov v Yesilhat [2017] NSWSC 666; In Re Anthony; Rogan v Rogan [2017] VSC 668; Richardson v Johnson [2018] VSC 85; Re Kordos [2023] VSC 14; Fodor v Simudvarac [2014] VSC 227; Richardson v Johnson [2018] VSC 85; Re Anthony [2017] VSC 668; Dimos v Skaftouros [2004] VSCA 141; Collicoat v McMillan [1999] 3 VR 803; McKenzie v Topp [2004] VSC 90, considered.

In the Estate of FLORENCE GEMENIS POLITES
SALKANOVIC v POLITES
[2025] SASC 86
Testamentary causes jurisdiction
STANLEY J:
Introduction

On 10 December 2024 I made orders granting the applicant’s application for the appointment of Ms Sarah Hooper as administrator ad colligenda bona of the estate of Florence Gemenis Polites (deceased) and refusing the respondent’s application for security for costs.
The deceased died on 5 March 2024. The applicant is a grandson of the deceased. By her last will (the will) made on 1 April 1999 she appointed her three children as executors, in addition to her husband who predeceased her. Her two daughters have since renounced their executorship, leaving her son, the respondent, Mr George Polites (the executor) as the sole executor. The executor is the respondent.
The applicant is a beneficiary of the deceased’s estate. However, the value of the specific gift made to him by clause 6 of the will is unclear. The bequest is an annual gift to the applicant, for a period of three years from the date of the deceased’s death, of all income which accrues from her account known as “Gem Holdings Pty Ltd M3 Account”. In addition, from the end of that three-year period the applicant is to receive payment from the M3 account of an amount of $5,000 per annum until the monies in that account are exhausted.
The executor has not sought a grant of probate and does not intend to do so. His position is that he has fully administered the estate and it is insolvent being in deficit in an amount of approximately $2.8 million. That deficit is alleged to result from a debt of $4,431,293.04 owed by the deceased’s estate to a company controlled by the executor. Neither the executor nor any person otherwise entitled to seek administration of the deceased’s estate did so.[1]
[1] Affidavit of Gregory Michael Griffin sworn 18 October 2024 at [6] – [7].
The executor opposed the application for a grant of letters of administration ad colligenda bona. He also sought an order for security for costs in an amount of $25,000. The applicant opposed the making of any order for security. The executor submitted that the question of security for costs should be determined before the applicant was permitted to proceed beyond the immediate agitation of his application for the appointment of an administrator ad colligenda bona. I dismissed the application for the order for security for the following reasons.
Security for costs
The executor sought an order for the provision by the applicant of security for costs in an amount of $25,000. The executor also sought an order that the proceedings be stayed until the applicant made payment into the Suitors’ Fund in satisfaction of any order for security for costs. The application for security was made pursuant to UCR 115.1(1)(a), (c) and (e).
UCR 115.1(1) provides that the Court may order an applicant to provide security for costs if:
(a)the applicant is bringing the claim or application for someone else’s benefit;
(b)…
(c)there are reasonable grounds to suspect that the action has been brought for an ulterior purpose;
(d)…
(e)the order is necessary in the interests of justice.
Considerations which govern the exercise of the discretion to order security for costs in ordinary adversarial litigation do not apply with the same force to probate litigation, where public interest considerations are prominent because of the need to consider rights, whether actual, potential or merely arguable, of absent parties, such as the deceased, and beneficiaries who may or may not, be aware of their interest in an estate. This is done in order to maintain public confidence in an orderly, fair process for succession to property.[2]
[2] Estate of Cockell; Cole v Paisley [2016] NSWSC 349 at [54].
The executor tendered four affidavits made by Mr David Joseph Meegan (Meegan affidavits) in the course of other proceedings. Mr Meegan is a solicitor acting for Marcus and Alex Polites, the sons of the executor and grandsons of the deceased. His affidavits exhibited documents concerning trusts connected with the Polites Group including land titles and corporate searches.
The executor submitted that given the commonality between the material exhibited to the Meegan affidavits and that attached to the second affidavit of the applicant, as described in the 6 December 2024 affidavit of Mr Griffin the executor’s solicitor, it is a reasonable or proper inference that Marcus and Alex Polites, the executor’s sons, are assisting the applicant with the objective in mind that if he is able to institute proceedings under the Inheritance (Family Provision) Act 1972 (SA) (IFP Act) they will have to be served as potential claimants, under UCR 254.12, with the consequence they will then be entitled to join in any proceeding by the applicant for further provision out of the estate.
The executor submitted that, in these circumstances, it was sufficient for the purposes of UCR 115.1(1)(a) that the relief sought in the application was being brought for some other person or person’s benefit regardless of whether it might also benefit the applicant.
I did not accept this submission.
The discretion to order security for costs is enlivened if the applicant is bringing the claim or application for someone else’s benefit. UCR 115.1(1)(a) is not enlivened if the applicant is bringing the claim for his own benefit, but incidentally in doing so, other persons will also benefit. In any event, in this case the evidence does not establish that the applicant is bringing the application for the benefit of the Polites brothers. That they may be interested in the proceedings is not a sound basis for inferring that the application has been brought for their benefit. It is plain that if the application succeeds it may benefit the applicant.
The executor submitted that for the purposes of UCR 115.1(1)(c) there are reasonable grounds to suspect that the application was not brought for the stated purpose of the urgent protection and preservation of the estate assets but rather for the predominant and real purpose of founding a claim under the IFP Act before the transition to the Succession Act 2025 (SA) on 1 January 2025. While I accept that the application was brought for the primary purpose of enabling the applicant to bring a claim under the IFP Act, I do not accept the submission that there are reasonable grounds to suspect that the application was brought for an ulterior purpose. The purpose of seeking an order for a grant of letters of administration ad colligenda bona in the estate of the deceased, where there has been no grant of probate, is not an ulterior purpose even if the consequence of making a grant is that the applicant will be able, as an eligible applicant, to make a claim under the IFP Act once the order of appointment is made.
In Cooper v Maloney (No. 6),[3] Blue J held that the concept of an ulterior purpose within the meaning of the rule[4] is the same as the concept of an ulterior purpose which constitutes an abuse of process giving rise to a stay or dismissal of proceedings but the standard of satisfaction is lower because there only need be reasonable grounds to suspect. Seeking a grant of representation in the deceased’s estate where the executor has not done so cannot be characterised as an ulterior purpose. Rather, the application is brought for an entirely legitimate purpose in the administration of the deceased’s estate. That purpose is the protection and preservation of the assets of the estate. The Court may grant administration limited to the collection of the property of the deceased as the Court may direct.[5]
[3] [2012] SASC 212 at [145].
[4] Then rule 194(1)(c) of the Supreme Court Civil Rules 2006 (SA).
[5] In the Estate of Hilder (deceased) [1998] SASC 6549.
The executor submitted that an order for security for costs is necessary in the interests of justice pursuant to UCR 115.1(1)(e). The executor submitted that security should be ordered on the basis that the application lacks merit. He submitted sufficient grounds for the appointment of an administrator ad colligenda bona had not been demonstrated. Further, he submitted there was no positive value in the estate out of which provision might be made. Finally, the executor submitted that the applicant was an entirely unworthy candidate for a claim on his grandmother’s bounty even if she had an ability at the time of her death to make further provision out of her estate in his favour.
I did not accept these submissions.
An order for security was not needed in the interests of justice where the executor had refused to apply for his own grant of probate when he could have done so. In contrast, the applicant was able to point to evidence that cast real doubt as to whether the estate has been properly administered in accordance with the terms of the will, the general law and the provisions of the Administration and Probate Act 1919 (SA). To have required security in these circumstances would have been contrary to the interests of justice as it carried the real risk of stifling an investigation into the administration of the estate.
For these reasons I refused the application for security for costs.
An IFP claim
In addition to being a beneficiary under the deceased’s will the applicant also sought to institute proceedings for further provision out of her estate. The applicant’s principal objective in bringing the application for a grant of letters of administration ad colligenda bona was to enable him to bring a claim against his grandmother’s estate for further provision pursuant to IFP Act. Such a claim faced two obstacles. First, the Succession Act2023 (SA) (Succession Act) commenced operation on 1 January 2025. Schedule 3, Cl 2 of the Succession Act, repealed the IFP Act. The Succession Act continues to provide for claims to be made out of the estate of a deceased on the basis of provision for an applicant’s maintenance, education or advancement but significantly restricts the right of grandchildren of a testator to claim further provision out of the estate. In the case of the applicant, his right to bring a claim may have been precluded by the operation of the Succession Act on and from 1 January 2025 if a claim had not been instituted by then. Second, in order to bring a claim under the IFP Act the applicant had to serve the administrator of the estate. An application for provision or further provision from a deceased estate pursuant to the IFP Act is deemed to be made on the day when the summons instituting the claim was served on the administrator in accordance with s 8(6) of the IFP Act. There would only be an administrator of the deceased’s estate for the purposes of the IFP Act if there was a person to whom administration had been granted. Unless a grant of letters of administration or probate was made before 1 January 2025, in time to permit a claim by the applicant pursuant to the IFP Act, the applicant’s entitlement to pursue such claim may have been lost.
As I have said, the executor opposed the application for a grant of letters of administration ad colligenda bona. He submitted that the application for the grant of letters of administration ad colligenda bona was an abuse of process. He submitted it was not an application made for the preservation and protection of the assets of the estate, which are not under any immediate threat, but was a “stalking- horse” for facilitating a claim under the IFP Act. As I have said, on this basis it was submitted the application was brought for an ulterior purpose. In any event, the executor submitted that the evidence did not establish a need for letters of administration where he had fully administered the estate.
I am satisfied the applicant sought a grant of letters of administration ad colligenda bona not only to enable the bringing of an IFP claim against the deceased’s estate but also to protect the assets of the estate. I consider that to be a genuine, albeit secondary purpose. The protection of the assets of the estate is inextricably linked to any IFP claim. The successful outcome of any IFP claim depends on there being recoverable assets in the deceased’s estate.
The executor’s conduct in the administration of the estate
The executor contended that probate was not obtained by him due to the deficiency of assets in the estate. The basis of the assertion that the estate was insolvent is the claim by the executor that at the date of the deceased’s death there was a liability to repay a debt to Nominated Manager Ltd as trustee of the Ambassador’s Trust (the trust) in an amount of $4,431,293.04. Nominated Manager Ltd is a company controlled by the executor. The liability was said to have been incurred by monies advanced to the deceased through Nominated Manager Ltd for a number of years prior to her death to pay all her living, care and medical expenses. The estate is now unable to pay this debt. As at the date of the deceased’s death the executor claims she only had assets of $1,630,069.45.
There was limited evidence put before the Court of the value of the estate of the deceased as at her death. Mr Griffin in his affidavit of 18 October 2024 exhibited a copy of a document entitled “Statements of Assets and Liabilities.”[6] The Statement of Assets and Liabilities includes an “executor’s estimate” of $50,000 for the personal effects of the deceased. The only description for this estimate is “jewellery, fur coats and statutes”. There was no evidence that the executor had taken any steps to have the assets of the deceased valued as at the date of death. Insofar as the executor sought to rely on values of the deceased’s assets in shares at an earlier date, he failed to provide to the applicant the valuations obtained from a third party.
[6] Exhibit B to the Affidavit of Gregory Michael Griffin sworn 18 October 2024.
The evidence is that at the date of the deceased’s death she held shares in a number of the Polites Group entities. On 27 March 2024, i.e. about three weeks after the deceased’s death, each of the shareholdings in the Polites Group entities in the estate were transferred to Nominated Manager Ltd. ASIC records were said to have been updated accordingly. Mr Griffin deposed to the executor transferring title to the deceased’s shareholdings in the companies listed in Annexure B to Mr Griffin’s affidavit of 18 October 2024 to Nominated Manager Ltd. It can be inferred that each of the Polites Group companies in which the deceased held shareholdings, which are controlled by the executor, have acted in a manner to effect a change in the register of shareholdings so as to record Nominated Manager Ltd as the shareholder in place of the deceased.
Is the estate insolvent?
The claim that the estate of the deceased is insolvent is only evidenced by the affidavits of Mr Griffin. The executor has not personally made this claim. He has not put on an affidavit. The assertion that the estate is insolvent rests on the estate being indebted to Nominated Manager Ltd. It is unclear on what basis the existence of a creditor / debtor relationship is said to be established. In Mr Griffin’s affidavit of 6 December 2024 he deposed[7] that the value of the shareholdings at the time of the deceased’s death is that set out in his first affidavit. That assertion is not proved. There are no valuations in evidence of the shareholdings at the time of death. In addition, Mr Griffin’s affidavit is made on the basis of information and belief of matters of which he does not claim to have direct knowledge, and he has not stated the basis upon which he gives this evidence. The claim that the deceased was indebted to Nominated Manager Ltd at the time of her death in the amount of $4,431,293.04 has not been established by the evidence. Further Mr Griffin does not give evidence as to the basis upon which monies were allegedly advanced by Nominated Manager Ltd to the deceased in payment of her living, care and medical expenses. Neither does Mr Griffin give any evidence that he has any personal knowledge of this. In his affidavit of 6 December 2024[8] Mr Griffin says that from approximately 2010 the deceased was supported by the Group by payment of all of her living, care and medical expenses. He said this happened using funds advanced for that purpose by the Ambassador’s Trust. Mr Griffin did not depose to any personal knowledge of these advances. Importantly, he did not depose to any facts which would establish a creditor/debtor relationship between the deceased and the trustee of the trust from approximately 2010. Neither does he address the issue of the incapacity of the deceased during the period from 2010 to 2024.
[7] Affidavit of Gregory Michael Griffin sworn 6 December 2024 at [16].
[8] Affidavit of Gregory Michael Griffin sworn 6 December 2024 at [17].

The evidence on this application is that at all relevant times the deceased lacked legal capacity. Mr Griffin’s evidence does not even attempt to demonstrate how a debtor/creditor relationship could have arisen between the deceased and the trust given those circumstances.
The trust deed for the trust has not been put in evidence. It has not been provided to the applicant despite his request. Nor have any of the financial records of the trust been supplied. There has been no disclosure as to whether the deceased was a beneficiary of the trust. Neither has the executor provided the applicant, upon request, with documents evidencing the asserted indebtedness of the deceased estate to Nominated Manager Ltd.
If monies of the trust were “advanced” for the benefit of the deceased that in itself would not necessarily constitute a debtor/creditor relationship between the deceased and the trust.
The executor’s assertion seems to be that Nominated Manager Ltd lent monies to the deceased and hence he is obliged to repay monies to that company.
Proof that moneys spent on the deceased’s living, care and medical expenses was a loan by Nominated Manager Ltd
In Australia, the burden of proving the fact that an advance of money was by way of loan, rather than by way of gift, is on the party which seeks to prove the existence of a loan.[9]
[9] Heydon v Perpetual Executors Trustees and Agency Code (WA) Ltd (1930) 45 CLR 111; Coshott v Sakic (1998) 44 NSWLR 667 at 671; Calokerinov v Yesilhat [2017] NSWSC 666 at [791].
The evidence before the Court, relevantly being confined to the affidavits of Mr Griffin, do not establish that monies advanced by Nominated Manager Ltd in the amount of $4,431,293.04 for the deceased’s living, care and medical expenses, was a loan. The single line entry in the Statement of Assets and Liabilities that the estate owes the above sum to Ambassador’s Trust ABN 36 674 773 910[10] by way of a loan account is insufficient to prove the existence of a loan, and a loan in that amount.
[10] Exhibit B to the Affidavit of Gregory Michael Griffin sworn 18 October 2024.
The applicant is entitled to a proper accounting of the deceased’s estate. The executor is obliged to account to a beneficiary in respect of the administration of an estate.[11] This has not occurred. It was apparent that the executor is and was not prepared to do so.
[11] In Re Anthony; Rogan v Rogan [2017] VSC 668 at [16]; Richardson v Johnson [2018] VSC 85 at [53]-[54].
In Skaftouros v Dimos Mandie J said[12];
An executor, like a trustee, should provide a prompt and proper response to reasonable inquiries and requests for information by beneficiaries. Even onerous, unreasonable, or antagonistic inquiries or requests should, at least in the first instance, receive some appropriate response or acknowledgement.
[12] [2002] VSC 198 at [14].
In my view the situation as it existed on the hearing of this application for an order for a limited grant of letters of administration ad colligenda bona justified the grant sought. The appointment of Ms Hooper as administrator will permit investigations to be made as to the assets of the estate at the time of the deceased’s death, their value, and the taking of such steps, if any, as she considers necessary to get those assets in and investigate whether the deceased was indebted to Nominated Manager Ltd at her death, and if so to what extent. It was evident the executor was not prepared to do this.
The Court’s principal concern is the due and proper administration of the estate and the interests of the parties beneficially entitled to that estate in accordance with the terms of the will.[13] This approach has been taken in applications for limited grants of administration to permit the administrator to consider matters which warrant “careful investigation”.[14] The Court’s jurisdiction was recently considered in Re Estate of Ahmed Abou-Khalid[15] where Lindsay J said:
An exercise of the Court’s probate jurisdiction is governed by the purpose served by the jurisdiction. It looks to the due and proper administration of a particular deceased estate, having regard to any duly expressed testamentary intention of the deceased, and the respective interests of parties beneficially entitled to the estate. The task of the Court is to carry out a testator’s testamentary intentions, and to see that beneficiaries get what is due to them.
[13] In the Goods of Loveday [1900] P. 154 at 156.
[14] Mataska v Browne [2013] VSC 62 at [30], [33] and [55].
[15] [2024] NSWSC 253 at [185]; (2023) 114 NSWLR 166 at 203 – 204.
The applicant being both a beneficiary and a person entitled to make a claim for further provision out of the estate pursuant to the IFP Act, has a sufficient interest in the administration of the estate to have standing to seek the grant of letters of administration ad colligenda bona.[16]
[16] Re Kordos [2023] VSC 14 at [10]; Mataska v Browne [2013] VSC 62 at [51]-[54] and [56]; Fodor v Simudvarac [2014] VSC 227 at [39].
In Mataska v Browne (Mataska)[17] McMillan J made a limited grant pursuant to the regime applicable in Victoria. In that case the testator died leaving a very small estate and the defendant executrix did not apply for a grant of probate. The testator left all of her estate to the defendant executrix. A year or so before her death, the testator sold real property, being her major asset, and the entire proceeds were used to purchase another property registered in the joint names of the testator and the defendant executrix. The plaintiff was the deceased’s other child and the defendant’s sister. No provision was made for the plaintiff from the deceased’s estate. The plaintiff brought proceedings pursuant to the Victorian IFP legislation. The Court found that while the plaintiff did not have a present or actual existing interest in the estate, her prospects of success in her IFP claim were reasonable. That was enough to establish a prima facie interest in the estate of the deceased which was sufficient to establish her interest in the administration of the estate. It was apparent that the defendant executrix would not undertake any investigation into inter vivos transactions. In those circumstances the Court held that a reasonable possibility of an interest in the estate was sufficient to establish the plaintiff’s standing to seek a limited grant of administration.[18]
[17] [2013] VSC 62.
[18] Mataksa v Browne [2013] VSC 62 at [52]-[56].
Before me the executor sought to distinguish this case from Mataska. He submitted that in Mataska the grant sought was a grant to investigate rather than a grant for the purposes of commencing proceedings. He contended that the applicant could not meet the Mataska test of a sufficient basis to support standing. He submitted that the evidence in this case was insufficient to establish an interest on the part of the applicant to obtain the orders he sought. He submitted that the applicant had not demonstrated any entitlement to call on the testator’s bounty as at the date of her death. Moreover, he contended that the evidence disclosed that the applicant had been amply supported over the years out of resources accumulated by the testator’s husband and the executor. The applicant submitted that this evidence was not challenged and, on the contrary, there was ample evidence that allowed an inference that the applicant had engaged in disentitling conduct.
I did not accept those submissions.
Those submissions are premature. Prima facie, at this stage no proper basis has been established that would preclude the applicant from pursuing his IFP claim. The evidence set out in Mr Griffin’s affidavits as to the conduct of the applicant is apparently put forward on the basis of information and belief. It is yet to be tested. It is too early to say whether the applicant can make out a proper basis for relief under the IFP Act. Further, whether any IFP claim should be denied on the basis of disentitling conduct is a matter for trial. In any event, the applicant has another interest in the administration of the estate as a beneficiary. That interest by itself would be sufficient to establish standing to seek the orders I made.
As Debelle J explained in In the Estate of Rowell (deceased),[19] while the jurisdiction can be invoked where there is an urgent need to preserve a wasting asset, that is not the only circumstance in which the jurisdiction can be invoked.
[19] [2006] SASC 313 at [3], (2006) 95 SASR 536 at 537.
In the Estate of Hilder[20] Williams J held that the Court may grant letters of administration limited to the collection of the property of the deceased and for such other purposes for the protection and preservation of the estate as the Court may direct, and the administrator may be given such powers as the Court deems fit.[21]
[20] In the Estate of Hilder (1998) SASC 6549.
[21] In the Estate of Hilder (1998) SASC 6549.
Accordingly, it is clear that the Court is empowered to make a limited appointment of an administrator ad colligenda bona to protect the assets of a deceased estate. In Re Cohen (deceased)[22] Gillard J said:
If there should be some existing circumstance whereby a grant of probate or administration cannot be made promptly and the nature of the estate of the deceased person requires protection by a personal representative of the deceased, the Court has clear power to and will authorise some person to collect and to protect the assets of the estate until a grant of probate of a will or full administration of an estate can be made. The foundation for making the grant is that the usual representation for some reason cannot be properly obtained after death and the nature of the assets of the deceased require that something be done about their administration for their protection.
[22] [1975] VR 187 at 189.
Unlike a claim under the IFP Act, misconduct by a beneficiary does not relieve the executor from the performance of his or her duty, including, the duty to account to the persons who are to take under a will. An executor must keep proper accounts and records. These records should be unambiguous, clear and distinct so as to provide accurate information to the beneficiaries sufficient to inform them as to the state of the administration. For that purpose, receipts, vouchers and other documentation should support each transaction.[23] A failure to communicate with beneficiaries and a failure to account can constitute a breach or neglect of duty by an executor in the administration of an estate.[24]
[23] Re Anthony [2017] VSC 668 at [16].
[24] Dimos v Skaftouros [2004] VSCA 141 at [12], [13], [15], [88]-[90] and [114]-[121]; (2004) 9 VR 584 at 592 – 593, 604, 608 – 609.
In Richardson v Johnson[25] Daly AsJ said:[26]
… [A]n executor is not permitted, at least in the first instance, to refuse to respond to a beneficiary’s queries merely on the basis that those queries (or the beneficiary’s conduct generally) is perceived by the executor to be ‘vexatious or misconceived’.
…
As noted above, the executors of an estate owe a fiduciary duty to the beneficiaries of an estate. It is also established law that the executors of an estate are obliged to account to the beneficiaries in respect of the administration of an estate.
These duties are entrusted to the executors by the deceased, and are imposed upon them by the law. An executor is not relieved of those duties, or of the consequences of failing to perform those duties, by the fact that they hold animosity towards the beneficiaries, or any one of them. The fact that the executors might subjectively think that a beneficiary’s conduct is unreasonable does not relieve them of the obligation to carry out their duties, or respond to reasonable requests. An executor ought not let their personal prejudices cloud their judgment as to how to properly administer the affairs of an estate.
[25] [2018] VSC 85.
[26] [2018] VSC 85 at [48], [53] - [54].
I accepted the submission of the applicant that the executor failed to comply with one of his fundamental duties. He has refused or failed to provide to the applicant information regarding the estate to which the applicant is entitled and which he sought, including documents evidencing the debt the deceased’s estate is alleged to owe, valuations obtained from a third party and disclosure of whether the deceased was a beneficiary of the Ambassador’s Trust. Neither the trust deed nor any financial records of the trust have been provided to the applicant.
Disentitling conduct
The executor submitted that the Court should refuse to grant the relief sought by the applicant in accordance with s 7(3) of the IFP Act because of his disentitling conduct.
Section 7(3) provides:
The Court may refuse to make an order in favour of any person on the ground that his character or conduct is such as, in the opinion of the Court, to disentitle him to the benefit of this Act, or for any other reason that the Court thinks sufficient.
The executor relied on allegations of abuse and harassment of himself by the applicant set out in the affidavit of Mr Griffin of 25 November 2024[27] and the applicant’s history of criminal offending.[28]
[27] Affidavit of Gregory Michael Griffin sworn 25 November 2024 at [50] – [60].
[28] Affidavit of Gregory Michael Griffin sworn 25 November 2024 at [61].
The applicant submitted that the Court should not accept this submission. He submitted that disentitling conduct for the purpose of s 7(3) is conduct towards the deceased person from whose estate provision is being sought. It is not a matter of whether the applicant’s conduct towards some other person can be criticised.
The executor submitted that the applicant had misstated the law and that s 7(3) was about character or conduct that need not be conduct directly targeted at the testator. I do not accept this submission.
In Re Gilbert[29] Jordan CJ said that for the purposes of a comparable provision[30] in NSW to s 7(3), relevant conduct means character or conduct relevant to the purposes which the Act is intended to serve. The relevant conduct therefore is misconduct towards the testator, or character or conduct which shows that any need which an applicant may have for maintenance is due to his or her own default.
[29] (1946) 46 SR (NSW) 318 at 321.
[30] Section 3(2) of the Testator’s Family Maintenance and Guardianship of Infants Act (1916) (NSW).
Given the Court must determine pursuant to the statutory test enshrined in s 7(1) whether the deceased made adequate provision for an applicant’s proper maintenance, education or advancement in life, there must be a correlation between the character and conduct and its effect on the deceased.[31] It follows that an applicant’s conduct towards persons other than the deceased, for example, where the conduct evinces disinterest, hostility, abuse, or even violence towards other family members, can be relevant for the purposes of provision from the deceased’s estate only to the extent that it reduces the moral duty that the deceased may have otherwise owed the applicant. The same may be said of conduct of a more general character, including criminal or other behaviour capable of generating an adverse inference as to an applicant’s character, or character or conduct revealing an applicant as the author of his or her own need for maintenance,[32] to the extent that it is capable of affecting the deceased’s moral obligations.
[31] Collicoat v McMillan [1999] 3 VR 803 at 818.
[32] McKenzie v Topp [2004] VSC 90 at [39].
Disentitling conduct is a discretionary consideration. In my view it is not a basis upon which the Court would refuse to grant letters of administration ad colligenda bona in the particular circumstances of this case where an IFP claim was yet to be brought.
In any event, consideration of disentitling conduct in this case is both premature ahead of the institution of any IFP claim and dependent upon the evidence which might be put before the Court.
The appointment of Ms Hooper as administrator
The executor submitted that the Court would never appoint someone such as Ms Hooper as administrator without hearing from her and knowing that she understands where any funding of her costs might come from.
I did not accept this submission.
Ms Hooper is an experienced solicitor. There was no reason to consider that she did and does not properly understand the basis upon which she agreed to accept the appointment, given the Court considered the appointment to be appropriate.
Abuse of process
The executor submitted that because the applicant’s predominant purpose in bringing the application was to facilitate the institution of a claim under the IFP Act, the proceedings are an abuse of process, relying on Williams v Spautz.[33]
[33] [1992] HCA 34; (1992) 174 CLR 509.
I did not accept this submission.
Accepting that the predominant purpose of the applicant in bringing this application is to facilitate the claim he wishes to bring pursuant to the IFP Act, there is nothing improper in him wishing to do so. Bringing the application for the grant of letters of administration ad colligenda bona is far removed from the institution of an array of proceedings seeking to prosecute university authorities for criminal defamation in order to secure reinstatement or a favourable settlement of the action as occurred in Williams v Spautz. As the majority in Williams v Spautz said in considering the boundaries of the tort of abuse of process, central to the tort is the requirement that the party who has instituted proceedings has done so for a purpose or to effect an object beyond that which the legal process offers.[34] To say that a purpose of a litigant in bringing proceedings which is not within the scope of the proceedings, constitutes, without more, an abuse of process, might unduly expand the concept. The purpose of a litigant may be to bring the proceedings to a successful conclusion so as to take advantage of an entitlement or benefit which the law gives the litigant in that event. That does not seem to me to be an abuse of process. On the other hand, if the purpose of bringing the proceedings is not to prosecute them to a conclusion but to use them as a means of obtaining some advantage for which they are not designed, or some collateral advantage beyond what the law offers[35] the position is different.
[34] Williams v Spautz [1992] HCA 34; (1992) 174 CLR 509 at 523.
[35] [1992] HCA 34; (1992) 174 CLR 509 at 526-527.
The evidence before me did not establish that the applicant has or had no intention of pursuing the application to preserve and protect the deceased’s estate. On the contrary, as I have explained he has a real interest in doing so.
I am reinforced in this view by the terms of the definition of “administration” in the IFP Act. Section 4 defines “administration” to mean probate of the will of a deceased person or letters of administration of the estate of a deceased person, whether with or without the will annexed and whether granted for general, special or limited purposes.
Urgency
I accept that it would not have been possible to treat this application for a limited grant of probate ad colligenda bona as warranting the provision of security for costs before the Court had even considered the appropriateness of making such a grant. In this case where the justification for seeking the grant of letters of administration was, in part, the conduct of the executor in parting with assets of the estate, coupled with his refusal to provide information and documents sought by the applicant, who is a person with an interest in the administration of the estate, this gave rise to a degree of urgency in taking steps to protect those assets.
Conclusion
In this case, the executor is and was unwilling to take a grant of probate of the will. As was the case in Mataska, it was appropriate and proper for the applicant, being a person with an interest in the deceased’s estate, both as a beneficiary and as a person entitled to make a claim for family provision, to apply to the Court for the appointment of an administrator ad colligenda bona. The basis of the applicant’s concern is the executor’s failure to act on his requests for the provision of information and documents relating to the estate, in particular, documents which are alleged to evidence the debt of $4,431,293.04 owed by the deceased’s estate to Nominated Manager Ltd, which is the basis for the executor’s conduct in transferring shares from the deceased’s estate to Nominated Manager Ltd and, as a result, the consequent contention that the deceased’s estate is insolvent. These circumstances give rise to a reasonable concern on the part of the applicant that the executor may have breached his executorial duty by parting with the assets of the deceased’s estate. In my view that requires investigation. That investigation may identify an urgent need to protect the estate and its assets. This concern is not allayed by the fact that the executor has not descended into giving evidence but rather has relied upon affidavits of his solicitor.

The applicant has a personal interest in the estate of the deceased and, as a beneficiary of the unadministered estate of the deceased, has a right to “secure that the assets are properly dealt with” during the course of administration.[36]
[36] Commissioner of Stamp Duties (Qld) v Livingston [1965] HCA 54 at [24]; (1964) 112 CLR 12 at 22.
In Official Receiver in Bankruptcy v Schultz[37] the High Court said:[38]
The right which any beneficiary has in an unadministered estate springs from the duty of the executor to administer the estate, to preserve the assets and to deal with them in the proper manner. Each beneficiary has an interest in seeing that the whole of the assets are treated in accordance with the executor's duties.
[37] (1990) 170 CLR 306.
[38] (1990) 170 CLR 306 at 313.
The executor’s failure to do these things established the justification for the appointment of an administrator ad colligenda bona to rectify the position with respect to the deceased’s estate and was a sufficient basis for the orders made by the Court.
It was for these reasons that I made an order granting the application for letters of administration of the Estate of Florence Gemenis Polites (deceased) to Sarah Hooper ad colligenda bona.