A Court appoints an administrator pendente lite to impartially manage and preserve a deceased Estate for the benefit of those persons who may ultimately be found to be entitled to it.

Section 32 of the Administration and Probate Act (NT) provides that pending any action concerning the validity of a will, obtaining a grant of probate or administration, the Court may appoint a person as administrator of the estate with such powers as the Court thinks fit.

The Will

G died on 25 July 2017, he had prepared a document that he referred to as a will in 2015. The document did not name an executor, G was blind, could not read, or write his signature. On the document below G’s printed name is what appears to be a diagonal line. The Wills Act 2000 (NT), provides that a signature can be a mark if it is placed on the document by the will maker with a view to authenticating it as their will.

Three witnesses signed the document, the first signed below the words “Witness”, the next beneath the words “Mark T Grose”; a third next to a handwritten notation, stating to have witnessed the above being read out and understood. A video recording was made showing that the witnesses were present when G signed the will.

The Court accepted that G had signed the will and it was witnessed by three people.

The application

As the document did not appoint an executor, Mark Grose (the applicant) commenced an application for administration of the will under s 33 of the Administration and Probate Act 1969 (NT).

The will did not contain a residuary provision or make any provision for disposing of assets other than “my income”. Personal property including IP in the recordings made by G does not seem to have been dealt with in the will.

Similarly the balance of G’s bank account/s at the date of death was not dealt with by the will. Therefore a partial intestacy may result depending on what assets the deceased owned and precisely what was meant by “my income”.

Partial intestacy

A partial intestacy occurs where a will distributes only part of a deceased’s estate with the part of the estate not disposed of by the will divided according to the rules of intestacy.

In order to form a view as to the extent of the partial intestacy, the court must ascertain the assets held by the deceased at the date of death – including the type and value of personal property and the balance of any bank accounts. Similarly G’s Spouse and de facto spouse had to be served with notice of the application for administration.

The applicant’s affidavit of assets and liabilities set out “all the assets and liabilities of the deceased of which at the date of swearing this affidavit I am aware” and not the assets and liabilities of the estate as at the date of death.

As G was married (though separated) at the time of his death, and also had a de-facto spouse, a partial intestacy would mean that other persons could be entitled to some of the proceeds of the estate under s66 of the Administration and Probate Act both G’s spouse and de facto spouse had to be served with all appropriate notice of the application.

Rule against perpetuities

The rule against perpetuities provides that a trust (which includes a trust created by a will) is invalid unless the property the subject of the trust is certain to vest within the perpetuity period (lifetime plus 21 years or 80 years) depending on what is specified in the instrument creating the trust.

Income from the deceased’s intellectual property was left to G’s daughter and foundation without making provision for the intellectual property to vest in anyone or specifying a perpetuity period. Both of which appeared to infringe the rule against perpetuities that would void the bequest to the foundation and his daughter, depending on the construction of the bequest and the meaning of “my income” in the will.

Intermeddling in the estate

The applicant’s evidence showed that he had been intermeddling in the estate and making distributions without the authority of letters of administration; placing him in a situation of conflict of interest if he were to be appointed as an administrator with a duty to enforce that obligation to account. If G’s daughter, wife nor the de facto spouse don’t want to apply it may be preferable for the Public Trustee to administer the estate.

On 27 October 2021, the Registrar contacted the applicant’s solicitors, seeking further information from the applicant; after several follow up emails the Registrar is yet to receive the requested information. In the meantime, the Court was concerned is that the applicant is continuing to intermeddle in the estate without the authority of letters of administration.

The interim decision

The Court did not consider it appropriate to grant letters of administration before the applicant answered the Registrar; appointing the Public Trustee as administrator pendente lite of the estate under s 32 of the Administration and Probate Act (NT). Additionally, the applicant must serve a copy of the application and supporting documents together with the court’s reasons on the deceased’s spouse and de facto spouse by 16 February 2022.

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