GEORGE CONSTANTINE POLITES v MARKAS SALKANOVIC [2026] SASCA 2

On Appeal from SUPREME COURT OF SOUTH AUSTRALIA (THE HONOURABLE JUSTICE STANLEY) PROB-24-007927 Appellant: GEORGE CONSTANTINE POLITES Counsel: MR RJ WHITINGTON KC WITH MR T MCFARLANE - Solicitor: GRIFFINS LAWYERS Respondent: MARKAS SALKANOVIC Counsel: MR G EDMONDS-WILSON KC - Solicitor: BEDE ANTHONY ELLIOTT & ASSOCIATES Hearing Date/s: 02/09/2025 File No/s: CIV-24-012044 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Civil) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. POLITES v SALKANOVIC [2026] SASCA 2 Judgment of the Court of Appeal (The Honourable Justice S Doyle, the Honourable Justice Bleby and the Honourable Justice David) 29 January 2026 APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES SUCCESSION - PROBATE AND LETTERS OF ADMINISTRATION - JURISDICTION AND DISCRETION OF COURT 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 - GRANTS OF ADMINISTRATION GENERALLY - TO WHOM GRANTED AND WHEN NECESSARY GENERALLY Florence Gemenis Polites (‘the deceased’) died on 5 March 2024. The appellant is the son of the deceased and executor of the deceased’s estate. The respondent is a grandson of the deceased and a beneficiary of the estate under the will of the deceased. The appellant did not apply for a grant of probate. He said the estate had been fully administered, and was insolvent, owing a debt of $2.8 million to Nominated Manager Ltd, as trustee for the Nominated Manager Trust. On 12 November 2024, the respondent filed in this Court an Originating Application – Probate seeking, relevantly, that there be a grant of letters of administration ad colligenda bona of the estate of the deceased. -- 1 of 58 -- On 10 December 2024, a judge of this Court granted the respondent’s application for a limited grant of letters of administration ad colligenda bona. The appellant appeals against this grant. In summary, the grounds of appeal complain that: 1. the judge pronounced orders as if the respondent were proceeding for final relief in the Originating Application to pass over the appellant as executor; 2. the judge proceeded by considering matters relevant to an ultimate appointment passing over the appellant when that was not the application the appellant was called upon to answer; 3. the judge made orders only first sought by the respondent by way of draft minutes of order handed up at the commencement of the hearing on 10 December 2024; 4. the authorities relied on by the judge are all distinguishable and either relate to different forms of grant or to appointments ad colligenda bona in circumstances of urgent need to protect and preserve assets; 5. the judge erred in ordering the appointment of an administrator ad colligenda bona in circumstances where the respondent had not demonstrated any imminent risk to the assets of the estate; 6. the judge erred in finding that it was appropriate to appoint an administrator ad colligenda bona for the secondary purpose of (a) undertaking investigations as ‘may identify an urgent need to protect the Estate and the assets’ and (b) ‘rectify[ing] the position with respect to the deceased’s estate’; 7. the judge erred finding that the respondent’s predominate purpose for the application, to facilitate a IFP Act claim prior to the commencement of the Succession Act, was a proper justification for the appointment; 8. the judge erred in accepting the respondent had standing to apply for the orders; 9. the judge erred in holding: a. disentitling conduct for the purposes of the IFP Act must be conduct directed towards the testator; b. evidence of disentitling conduct on part of the respondent was not relevant and did not provide a basis upon which the Court might refuse the application for the appointment of an administrator; and c. it was premature for any consideration to be given to the conduct of the respondent and that there was no evidence before the court as to permit it to take account of such matters. 10. the judge was wrong to hold, if he did so hold, that the appellant had not adduced relevant evidence of disentitling conduct and the judge should have taken such conduct into account where the urgency for the appointment of an administrator related to the respondent’s need to facilitate a claim for further provision from the estate; 11. the judge failed to have sufficient regard to several facts in finding that the executor failed to comply with his fundamental duty; 12. the judge erred in holding that the appellant had acted in breach of his duties as executor in allegedly failing to provide documents and information to the respondent on request regarding the administration of the estate; 13. the judge erred in making the orders in circumstances where the respondent’s counsel disavowed an intention to prosecute an application to pass over the appellant as executor; and -- 2 of 58 -- 14. the ultimate justification given by the judge for the appointment went to the application for passing over and not to the application for urgent relief to protect and preserve the estate. Held (per Bleby JA, Doyle and David JJA agreeing) granting leave to appeal but dismissing the appeal: 1. While there are well recognised forms of grant that meet the archetypal descriptions ‘ad colligenda bona’ and ‘ad litem’, the Court’s powers are not confined to making a grant in one or other form. Rather, the jurisdiction of the Court to make limited grants of administration is flexible, in that it can tailor the form of a grant to the specific requirements of the estate in circumstances where a general grant is, for whatever reason, not available. 2. In an application for a limited grant, including for a grant ‘ad colligenda bona’, the focus of the Court in the exercise of its broad and flexible jurisdiction, is on the powers that are necessary to ensure the protection of the estate in the circumstances presenting. 3. It is necessary, in a contested case, to ensure notice is given of the extent of limited grant applied for. What this requires in practice will depend, to an extent, on the circumstances of urgency attending on the application. 4. The use of the term ‘ad colligenda bona’ in the respondent’s application did not confine the case that the appellant had to answer. The appellant had to answer the case against him on the orders that were sought. To say that the application was confined to a case that met the archetype a grant ad colligenda bona misconceives the nature of the jurisdiction (Ground 2). 5. Uncertainty and risk regarding the administration of an estate can provide the basis for urgent relief in the form of a limited grant. The perceived urgency arising out of the appellant’s failure to comply with his duties as executor of the estate provided a sufficient basis for the limited grant, independent of the respondent’s desire to facilitate an IFP Act claim (Ground 1). 6. The relief granted was available on the application as framed. The form of the orders did not stray outside the application being propounded (Ground 3). 7. The respondent’s application for discovery did not affect the integrity of the findings of the appellant’s failure and breach of his duties, nor the relevance of those findings to the judge’s assessment of the urgency of an administrator being appointed on a limited basis with investigative powers (Ground 12). 8. The matters the respondent relied on properly supported the limited grant sought at the hearing (Ground 13). 9. The respondent’s concern regarding the appellant’s failure to act on his requests for information and documents relating to the estate, and therefore that the appellant may have breached his executorial duty, was capable of supporting the conclusion that there was an urgent need to protect the estate as well as an ultimate claim for passing over the appellant as executor (Ground 14). 10. There was ample basis to justify the appointment of an administrator with powers of investigation (Grounds 4, 5 and 6). 11. The respondent’s status as a beneficiary under the deceased’s will was sufficient to confer on him standing to bring an application for a limited grant (Grounds 7 and 8). 12. The appellant’s complaints regarding the judge’s consideration of the respondent’s disentitling conduct ultimately fail given the respondent’s interest as a beneficiary under the will. Nonetheless, circumstances may be envisaged where disentitling conduct can demonstrably stand in the way of an IFP Act claim and thereby affect the assessment of the interest of an appellant for an urgent limited grant. In this case, the judge did not confine his view of disentitling conduct to conduct directly targeted at the deceased. Absent any broader evidential context in which disentitling conduct would be viewed in any trial, the possible -- 3 of 58 -- effect of that conduct on the exercise of discretion in the prospective IFP Act claim was entirely uncertain (Grounds 9 and 10). 13. The appellant, as executor, had duties to the respondent, both as a potential claimant under the IFP Act and as a beneficiary under the will (Ground 11(a)). 14. The respondent had an interest, on the basis of the bequest, in the administration of the estate as a whole (Grounds 11(b)-(c)). 15. The respondent based his application for a limited grant on the fact that he was a named beneficiary in the will, which was a sufficient basis on which to assert standing (Ground 11(d)). Uniform Civil Rules 2020 (SA) rr 22.5(3)(c), 41.2, 355.4, 355.6; Inheritance (Family Provision) Act 1972 (SA) ss 7(1)(b), 7(3), 8(1), 8(6); Succession Act 2023 (SA) sch 4 cl 2; Intervention Orders (Prevention of Abuse) Act 2009 (SA); Supreme Court Act 1935 (SA) s 18; Administration and Probate Act 1891 (SA) s 25; Administration and Probate Act 1919 (SA) ss 4, 5, 21; Legal Practitioner’s Act 1981 (SA) s 50; Court of Probate Act 1857 (UK) s 73; Testamentary Causes Act 1867 (SA) s 67; Administration and Probate Act 1958 (Vic) pt 4, s 91; Family Provision Act 1982 (NSW), referred to. In re Anthony; Rogan v Rogan [2017] VSC 668; Richardson v Johnson [2018] VSC 85; Mataska v Browne [2013] VSC 62; In the Estate of Rowell (deceased) (2006) 95 SASR 536; In the Estate of Hilder (1998) SASC 6549; Re Cohen (deceased) [1975] VR 187; Re Brown [2021] VSC 119; Re Clore [1982] Ch 456; In the Goods of Peter Richmond Wyckoff (1862) 3 Sw & Tr 20; 164 ER 1178; In the Goods of Don Miguel Gudolle (1835) 3 Sw & Tr 22; In the Goods of Bolton [1899] P 186; Re Estate of the late Tanju (Andrew) Assim [2015] NSWSC 337; Faulkner v Daniel (1843) 3 Hare 199; 67 ER 355; Greenway v McKay (1911) 12 CLR 310; In Estate of Crane (2005) 93 SASR 198; Re Swale [1940] SASR 391; In the Estate of Smith (1972) 2 SASR 477; Re Noblet, Unreported, Full Court of the Supreme Court of South Australia, 16 June 1896, ; Wood v McLean (2010) 31 VR 12; Van Wyk v Albon [2011] VSC 120; Re Culina; Poulos v Pellicer [2004] NSWSC 504; Arbuz v Sanderson Unreported, Supreme Court of New South Wales, 24 March 1986; Hogarth v Johnson [1987] 2 Qd R 383; In the Estate of S [1968] P 302; In the Estate of Potticary [1927] P 202; In the Estate of Biggs [1966] P 118; In Goods of Taylor [1892] P 90; Re Galbraith (dec’d) [1951] P 422; In Goods of Atherton [1892] P 104; In Goods of Stewart (1872–75) LR 3 PD 244; Re Sawtell (1862) 2 Sw & Tr 448; Ex parte Leguia; In the estate of Ashworth [1934] P 80; In the Goods of Loveday [1900] P 154; Re Estate of Ahmed Abou-Khalid (2023) 114 NSWLR 166; Re Kordos [2023] VSC 14; Fodor v Simudvarac [2014] VSC 227; Collicoat v McMillan [1999] 3 VR 803; Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306; Re Gilbert (1946) 46 SR (NSW) 318; Wenn v Howard [1967] VR 91, considered. -- 4 of 58 -- POLITES v SALKANOVIC [2026] SASCA 2 Court of Appeal – Civil: S Doyle, Bleby and David JJA 1 S DOYLE JA: I agree with Bleby JA’s reasons for dismissing the appellant’s challenge to the primary judge’s grant of letters of administration. 2 In particular, I agree with his Honour’s reasons for concluding that the respondent had standing to bring his application for the grant of administration. Whilst something more than the assertion of, or speculation as to, an interest in the estate was necessary,1 the respondent’s interests as a specific legatee under the deceased’s will, and as a person with an apparently reasonable basis for claiming further provision from the estate, provided a sufficient basis to conclude that he had standing. 3 I also agree with Bleby JA’s focus upon whether the limited grant of letters of administration was appropriate, having regard to the due and proper administration of the deceased’s estate. Whilst the terms of the grant made may not have conformed to the archetype of a grant ad colligenda bona, the accuracy or appropriateness of that label was not determinative. In addition to there being some appropriate flexibility in the use of this label, the ultimate issue was not the accuracy of the label but the appropriateness of the terms of the grant in the circumstances of the case. The respondent’s use of this label did not occasion any procedural unfairness. The circumstances relied upon by the respondent were made clear, and justified a limited grant in the terms made. 4 For the reasons given by Bleby JA, no error has been identified in the primary judge’s decision. In the circumstances, it is not necessary to determine the appellant’s challenge2 to the correctness of the interstate authorities3 treating an appeal from a limited grant as an appeal from an interlocutory decision requiring leave to appeal. 5 To the extent it is necessary, I would grant leave to appeal. However, I would dismiss the appeal. 6 BLEBY JA: Florence Gemenis Polites (‘the deceased’) died on 5 March 2024. The appellant is the son of the deceased and executor of the deceased’s estate. The respondent is a grandson of the deceased. He is also a beneficiary of the estate under the will of the deceased dated 1 April 1999 (‘the will’). 1 German v Germantsis [2022] VSCA 157 at [44] (Niall, Sifris and Walker JJA); Burke v Public Trustee for the State of South Australia [2022] SASCA 64 at [330] (Doyle JA, Stanley AJA agreeing). 2 Relying upon the idea that the grant creates a ‘new charter’ of substantive rights and obligations: Hardel v Burrell & Family Pty Ltd (2009) 103 SASR 408 at [34]-[36] (Kourakis J, Nyland and David JJ agreeing). 3 Albecz v Bloom [2024] NSWCA 166 at [7] (Stern JA and Basten AJA); Kordos v Kordos [2024] VSCA 84 at [6] (Niall and Lyons JJA). -- 5 of 58 -- [2026] SASCA 2 Bleby JA 2 7 The appellant has not applied for a grant of probate. He has taken the position that the estate has been fully administered. He says that the estate is insolvent, owing a debt of about $2.8 million to Nominated Manager Ltd, as trustee for the Ambassadors Trust (which has since changed its name to ‘Nominated Manager Trust’). 8 On 12 November 2024, the respondent filed in this Court an Originating Application – Probate seeking, relevantly: • that there be a grant of letters of administration ad colligenda bona of the estate of the deceased; • that the appellant be passed over as executor of the estate of the deceased under the will; and • that there be a grant of letters of administration with will annexed of the will of the deceased to an independent administrator. 9 On 18 November 2024, the Registrar of Probates referred the matter to a judge of the Court. 10 On 10 December 2024, the primary judge made orders in the following terms, on the respondent’s prosecution of the application for a limited grant of letters of administration ad colligenda bona: 1. Sarah Hooper of Track Legal, 73 Magill Road Stepney South Australia, legal practitioner, is appointed as administrator ad colligenda bona of the estate of Florence Gemenis Polites deceased late of 80 Moseley Street Glenelg South South Australia 5045 (“the deceased”). The appointment of the administrator ad colligenda bona takes effect on the making of this order and the powers granted to the administrator ad colligenda bona are effective upon the making of this order. 2. Sarah Hooper is directed to obtain a grant of letters of administration ad colligenda bona as soon as practicable after the date of this order and the Registrar of Probates is directed to issue a grant of letters of administration ad colligenda bona to Sarah Hooper upon an application in suitable form being received by her. 3. The appointment of Sarah Hooper as administrator ad colligenda bona is limited for the purposes only of: a. collecting, getting in and receiving all of the personal estate of the deceased as at the date of death of the deceased and doing such acts as may be necessary or proper for the preservation of the same; b. doing such acts as may be necessary or proper to investigate and make enquiries about and determine the property comprising the personal estate of the deceased as at the date of death of the deceased; c. doing such acts as may be necessary or proper to investigate and make enquiries about and determine the value of the personal estate of the deceased as at the date of death of the deceased; -- 6 of 58 -- [2026] SASCA 2 Bleby JA 3 d. doing such acts as may be necessary or proper to investigate and make enquiries about and determine the liabilities of the deceased as at the date of death of the deceased; e. doing such acts as may be necessary or proper to investigate and make enquiries about whether the deceased was indebted to Nominated Manager Limited as at the date of death of the deceased and, if so, the amount of such indebtedness; and limited until further representation be granted but no further or otherwise. 4. Sarah Hooper is to be remunerated for all work undertaken by her in relation to the estate of the deceased, whether in the ordinary course of her profession or business or not, with such remuneration to be allowed in accordance with the Higher Courts costs scale in Part 2 of Schedule 6 of the Uniform Civil Rules 2020 and paid from the assets comprising the estate of the deceased. 5. The administrator ad colligenda bona and the parties be at liberty to apply further herein from time to time. … 11 The primary judge published reasons for his decision on 30 May 2025.4 The appellant has filed a lengthy Notice of Appeal against that decision. 12 In summary, the Grounds of Appeal complain that the primary judge erred in: • making the orders sought by the respondent by reference to matters relevant only to, and in terms of an order for, passing over and the associated relief sought in the Originating Application. The appellant was only called on to answer the application for the appointment of an administrator ad colligenda bona (Grounds 1–3, 12–14); • ordering the appointment of an administrator ad colligenda bona in circumstances where the threshold requirements for such an appointment were not met (Grounds 4–6); and • finding that the respondent was a person with appropriate standing to seek orders in the terms made (Grounds 7–11). Background 13 The will appointed the deceased’s husband and three children, including the appellant, as executors of her estate. The deceased’s other children are Ms Evon Koumi and Ms Helen Polites. The deceased’s husband, Mr Constantine George Polities, died in 2001. Ms Koumi and Ms Polites renounced their executorship, leaving the appellant as the sole executor of the estate. 4 Salkanovic v Polites [2025] SASC 86. -- 7 of 58 -- [2026] SASCA 2 Bleby JA 4 14 The respondent is a beneficiary of the deceased’s estate. By clause 6 of the will, the deceased left the respondent a bequest in the form of an annual gift: I GIVE to my grandson MARK SALANOVIC [sic] for the period of three years from the date of my death all income to accrue from my account known as “Gem Holdings Pty. Ltd. M3 Account” to be paid by quarterly payments and from the end of the said period of three years I DIRECT my trustee to pay to the said MARK SALONOVIC [sic] from the said M3 Account an amount of $5,000 per annum until the moneys [sic] in the said account are exhausted. 15 The deceased left a bequest of $3,000 to her goddaughter. She left her shares in the limited companies to the trustees of the Constantine George Polites Master Trust, to be held upon the trusts set forth in the Constantine George Polites Master Trust Deed dated 10 March 1999. 16 On 20 March 2024, shortly after the death of the deceased, the respondent’s solicitor lodged a probate caveat in relation to the estate. He lodged another caveat on 20 September 2024. The appellant’s solicitor filed case access requests in relation to those actions. 17 On 12 August 2024, the respondent’s solicitor at the time, Mr Damien O’Dea, wrote to the appellant’s then solicitor, Mr Garry Winter, requesting a copy of the will. Mr Winter did not provide a copy of the will. 18 On 4 October 2024, the respondent filed an Originating Application – Probate seeking an order that the Public Trustee be appointed administrator of the deceased’s estate.5 This application was supported by an affidavit of the respondent dated 3 October 2024. 19 On 17 October 2024, Griffins Lawyers filed a Notice of Acting for the appellant. Mr Gregory Griffin then filed an affidavit dated 18 October 2024 (‘the first Griffin affidavit’). He gave the following evidence about the circumstances surrounding the administration of the estate: 7. For a number of years prior to her death, [the deceased] had been supported by payment of all of her living, care and medical expenses advanced through Nominated Manager Limited as trustee of the Ambassadors Trust such that at the time of her death (at the age of 102) she was indebted to the trust in the amount of $4,431,293.04. 8. Due to the deficiency of assets in the Estate, probate was not obtained. 9. As at the date of making this affidavit, the Estate has for all intents and purposes been fully administered and remains in deficit to a similar amount to that identified in the Statement of Assets and Liabilities. 10. At the time of [the deceased’s] death, the bank account referred to in paragraph 6 of the Will, in the name of Gem Holdings Pty Ltd, was no longer in existence. 5 This is the action numbered: PROB-24-006943. -- 8 of 58 -- [2026] SASCA 2 Bleby JA 5 20 The first Griffin affidavit exhibited a copy of the will and a Statement of Assets and Liabilities. According to the Statement of Assets and Liabilities, the total value of the deceased’s assets at the date of death was $1,630,069.45.6 This was made up of an ‘executor’s estimate’ of $50,000 for the deceased’s personal effects, including jewellery, fur coats and statues, and shares ‘as at 31 December 2023 per Leadenhall Valuation’ valued at $1,580,069.45. The Statement records a loan liability to ‘Ambassadors Trust ABN 36 675 773 910’ in the amount of $4,431,293.04. 21 The Public Trustee opposed its proposed appointment. In light of this, on 4 November 2025, the Registrar of Probates determined that the most practical way for the respondent to proceed was to commence a fresh Originating Application. The Registrar ordered the respondent to discontinue the first action, with no order as to costs, and to commence a new Originating Application.7 22 On 12 November 2024, the respondent filed a new Originating Application.8 By this Originating Application, the respondent sought orders: 1. That there be a grant of letters of administration ad colligenda bona of the estate of [the deceased] … to an independent administrator to be appointed by the Court. 2. That George Constantine Polities [the appellant] be passed over as executor of the estate of the deceased under the will of the deceased dated 1 April 1999 (“the will”). 3. That there be a grant of letters of administration with will annexed of the will of the deceased as contained in a copy thereof to an independent administrator to be appointed by the Court. 4. That the costs of the Applicant of this Originating Application be paid out of the estate of the deceased on a solicitor/client basis. … 23 The new Originating Application was supported by an affidavit of the respondent, dated 3 October 2024. This affidavit, filed on 13 November 2024, had originally been filed in the first action. It addressed several matters, including: • the respondent’s relationship, as grandson, with the deceased and her husband; • the respondent’s belief that the deceased had suffered from dementia for several years; • the probate caveats lodged on the respondent’s behalf and the respondent’s inquiries as to the existence of a last will; 6 See also Salkanovic v Polites [2025] SASC 86 at [23]. 7 On 25 November 2025, the primary judge dismissed the first Originating Application. 8 FDN 1 in action numbered: PROB-24-007927. -- 9 of 58 -- [2026] SASCA 2 Bleby JA 6 • the respondent’s personal circumstances and his desire to make a claim under the Inheritance (Family Provision) Act 1972 (SA) (‘IFP Act’); • the prejudice the respondent apprehended on account of not being able to make an application for provision under the IFP Act until there was a grant of administration of the estate of the deceased. The Succession Act 2023 (SA) (‘Succession Act’) was to commence operation on 1 January 2025, replacing the IFP Act. The respondent apprehended that, in his circumstances as a grandson of the deceased, he would not be entitled to seek provision under the more restrictive terms of the Succession Act, once that Act commenced on 1 January 2025. 24 As to the respondent’s relationship with the deceased, the affidavit explained that when the respondent was about six years old, he moved in with the deceased and his grandfather when his mother became unable to look after him. His grandparents cared for him and looked after his living expenses. He contributed to chores. His grandparents paid for his tuition fees at Mercedes College. The respondent began working for his grandfather in about 1988, in real estate. When his grandparents bought and moved into a new residence, they allowed him to stay at the house where he had been living. When the respondent’s grandfather passed away in 2001, the respondent immediately moved in with the deceased to take care of her. He did this for a period of some months until professional carers were engaged. The affidavit further details the respondent’s criminal history and his very poor health. 25 On 11 November 2024, Mr O’Dea wrote to Mr Griffin in response to the first Griffin affidavit. He requested that Mr Griffin answer several questions. Mr O’Dea also sought the provision of information and documents relating to the Statement of Assets and Liabilities; the asserted loan agreement; the Ambassadors Trust; the costs of living, care, medical and general expenses of the deceased; the Leadenhall valuation; the GEM Holdings Account; and an itemised list of the personal effects of the deceased. 26 Mr Griffin replied on 13 November 2024. He asserted that the respondent had not documented any basis to demand such ‘wide-ranging’ production and that absent any proper disclosed basis, the appellant was under no obligation to comply. 27 Also on 13 November 2024, the respondent filed an Interlocutory Application for discovery.9 He sought the production of documents evidencing the alleged debt to the Ambassadors Trust referred to in the first Griffin affidavit. Mr O’Dea filed a supporting affidavit, sworn on 12 November 2025. 9 FDN 3 in PROB-24-007927. -- 10 of 58 -- [2026] SASCA 2 Bleby JA 7 28 On 18 November 2024, the Registrar of Probates referred the matter to the primary judge.10 The remarks in the Record of Outcome summarise the respondent’s purpose for seeking a limited grant ad colligenda bona: The [respondent] seeks an order for an independent administrator to be appointed to administer the estate of the Deceased. … In addition, the [respondent] also seeks an order for a limited grant ad colligenda bona to issue as a matter of urgency. Counsel for the [respondent] has indicated that if a limited grant is issued, the [respondent] will then lodge a claim for provision under the Inheritance (Family Provision) Act 1972 (SA). The [respondent] is concerned that because of the Succession Act 2023 (SA) commencing on 1 January 2025, he may not be eligible to bring a claim for provision if a grant is not issued this year. 29 On 25 November 2024, the appellant filed a second affidavit of Mr Griffin (‘the second Griffin affidavit’). This affidavit addressed: • Mr Griffin’s knowledge and belief about the respondent’s financial circumstances; • the provisions that the appellant and the Polites Group (at the direction of the appellant) had made for the respondent; • a history of abuse and harassment by the respondent towards the appellant; and • the history of an ANZ bank account in the name of GEM Holdings Pty Ltd. Mr Griffin indicated that this was the account referred to in the will the subject of the bequest to the respondent. Mr Griffin said that as of 23 May 2002, the balance of this account was zero and that the account was closed thereafter. I note here that the respondent’s evidence was that the deceased had been diagnosed with dementia by some time in 2001. 30 Documents exhibited to the second Griffin affidavit evidence a protracted dispute between the appellant and the respondent. This included a decision of a magistrate in 2015 to impose an intervention order pursuant to the Intervention Orders (Prevention of Abuse) Act 2009 (SA), preventing the respondent from contacting the appellant. 31 On 25 November 2024, the appellant filed an application for security for costs.11 32 The matter came before the primary judge for directions on 25 November 2024. The transcript records that the respondent sought only the first part of the Originating Application, and not the application to pass over, to be listed on an urgent basis: 10 FDN 5 in PROB-24-007927. 11 FDN 7 in PROB-24-007927. -- 11 of 58 -- [2026] SASCA 2 Bleby JA 8 The originating application has two main aspects to it. In the first instance, there's sought to be a grant of letters of administration ad colligenda bona to an independent administrator. … The more substantive aspect of the originating application is the passing over of the executor named in the last will, Mr George Polites, who has not obtained a grant of probate of the will of the deceased since she died in March. The reasons why he takes that position are, so far as what we know, those expressed in the affidavits that have been filed by his solicitor, Mr Griffin. So we accept that the second aspect of the application, the order for the passing over of the named executor, will be a very contentious proceeding, and we don't ask for that to be dealt with on an urgent basis. What we ask to be dealt with on an urgent basis is simply the application for a grant of letters of administration ad colligenda bona. 33 The primary judge formally dismissed the first action.12 He made an order for the filing of further affidavit material and listed the matter for further directions on 3 December 2024. 34 On 27 November 2024, Mr O’Dea made another request to Mr Griffin, seeking documents referred to by the appellant in filed documents pursuant to r 41.2 of the Uniform Civil Rules 2020 (SA) (‘UCR’). On 28 November 2024, Mr Griffin refused the request. 35 On 2 December 2024, Mr O’Dea filed a second affidavit in support of an order for a grant of letters of administration ad colligenda bona. That affidavit canvasses Mr O’Dea’s requests for documents and information relating to the estate. 36 The respondent filed a second affidavit (‘the second Salkanovic affidavit’), sworn on 2 December 2024. He responded to Mr Griffin’s first and second affidavits, challenging the Mr Griffin’s valuation of assets of the estate. He said that the deceased’s jewellery collection was valued by a jeweller, Mr Zaccharia, in or around 2002, to be worth about $500,000. He also said that the deceased and Mr Constantine Polites ‘likely’ jointly owned two paintings of considerable value by Henry Lawson. 37 The second Salkanovic affidavit exhibits a letter authored by Mr Steven Tsimopoulos, a chartered accountant from Nationwide Business Solutions. That letter attaches a spreadsheet and ‘Appendix’. The Appendix includes about 800 pages of financial records. In the letter, Mr Tsimopoulos explained that he ‘conducted the review [of this material] to provide reasonable assurance as to whether the records are free from material misstatement’. He endorsed the records as accurately reflecting the capital value of property held within the entities and shareholding values held by the deceased. The spreadsheet records a total capital value of the deceased’s share holdings of $26,801,965.44. The respondent said in the second Salkanovic affidavit that this letter: 12 FDN 2 in PROB-24-006943. -- 12 of 58 -- [2026] SASCA 2 Bleby JA 9 …endorsed a report as being true and accurate in relation to various entities in the Polites group of companies including entities in which the deceased held shares at the time of her purported incapacity in July 2020 and demonstrates the value of what her shares should be valued at the time of her death. 38 In response, Mr Griffin filed a third affidavit (‘the third Griffin affidavit’) dated 6 December 2024. Mr Griffin refuted the Respondent’s assertions. He said that the paintings were not owned personally by the deceased or her husband. He said that the value sought to be attributed to the jewellery was incorrect and materially overstated the position. He said that no such valuation by Mr Zaccharia was known to have existed. 39 Mr Griffin provided a further explanation of the circumstances surrounding transfer of the deceased’s shareholdings, the value of which he said was set out in the Statement exhibited to the first Griffin affidavit: As deposed to in my first affidavit, for a number of years prior to her death being from approximately 2010 and following, [the deceased] was supported by the Group in terms of payment of all of her living, care and medical expenses using funds advanced for that purpose by the Ambassadors Trust. As a result, at the time of her death (aged 102), [the deceased] was indebted to the Trust in the amount of $4,431,293.04. On 27 March 2024, each of the shareholdings in the Group entities in the Estate were transferred to Nominated Manager Limited (ACN 160 690 755) in its capacity as trustee for the Ambassadors Trust, in partial satisfaction of the debt then owing by the Estate to the Ambassadors Trust, and ASIC records updated accordingly. … Following the transfer of those shares, the Estate remained indebted to the Ambassadors Trust in an amount of approximately $2.8 million. 40 Mr Griffin said that the debt owing by the deceased at the time of her death was to Nominated Manager Ltd, in its capacity as trustee for the Ambassadors Trust, which changed its name (on 24 June 2021) to Nominated Manager Trust. 41 Mr Griffin also asserted that the Nationwide Business Solutions report had ‘materially misstated’ the position in relation to the shareholdings. He said that it was apparent that almost all the material exhibited to the second Salkanovic affidavit comprised materials exhibited to affidavits of the executor’s sons filed in separate proceedings relating to the estate of Mr Constantine Polites. The appellant submitted to the primary judge that it could be inferred that the respondent was being assisted in these proceedings by the executor’s sons. 42 Mr Griffin filed two more affidavits on 9 December 2024 and 19 December 2024. It is not necessary to describe the contents of these affidavits. 43 The respondent filed written submissions on 9 December 2024, the day before the hearing before the primary judge. The submissions reflect the -- 13 of 58 -- [2026] SASCA 2 Bleby JA 10 respondent’s request at the earlier directions hearing for only the application of the appointment of an administrator ad colligenda bona to be listed urgently:13 1. The submissions are made in relation to the orders sought in paragraph 1 of the Originating Application – Probate (FDN 1). … 3. The application is for the appointment of an independent administrator ad colligenda bona of the estate of [the deceased]. 4. It is proposed that an independent legal practitioner Ms Sarah Hooper be appointed as administrator ad colligenda bona. 44 Similarly, the appellant’s submissions, filed on 9 December 2024, record: An order was also sought that the entire application be listed for an urgent hearing. The Applicant’s counsel has since clarified that the request for an urgent hearing only relates to the relief sought in order 1 of the Originating Application relating to the grant of administration ad colligenda bona. … As to the suggestion of the appointment of an administrator ad colligenda bona, no occasion for such an appointment is demonstrated anywhere in the material filed on behalf of the [respondent]. As for the application to pass over the [appellant] as administrator, again no basis in the conduct of the [appellant] has been made out in any way at all in any of the material filed by the [respondent] to take that extreme step. The decision of the primary judge 45 On 10 December 2025, just prior to the hearing, Mr O’Dea provided draft Minutes of Order to the primary judge’s chambers and the appellant’s solicitor. The terms of the draft minutes are substantially reflected in the orders recorded earlier. 46 At the hearing, senior counsel for the respondent reiterated that the application at that stage was limited to the question of whether to appoint an administrator ad colligenda bona: The further aspects in this application which don't arise for decision today is the seeking of the passing over of Mr George Polites as executor and in due course, no doubt, there'll be an application which I'm assuming will be contested where he'll say 'I've done nothing to justify my passing over' and we'll say ‘Yes, you have done things that justify your passing over’. But that matter's not before the court today. It's simply the interim position of preserving the assets and taking steps to enable the true position to be ascertained, which won't be ascertained if the current position of Mr George Polites simply refusing to obtain a grant of probate remains. (Emphases added.) 13 FDN 16 in PROB-24-007927. -- 14 of 58 -- [2026] SASCA 2 Bleby JA 11 47 Following the hearing, the primary judge made the orders set out in the draft minutes of order. 48 On 30 May 2025, the primary judge published reasons for his decision.14 He dismissed the appellant’s applications for security for costs and to stay the matter until security was provided.15 He was satisfied that the respondent’s principal objective in bringing the application for a grant of letters of administration ad colligenda bona was to allow him to institute proceedings for further provision out of the deceased’s estate pursuant to the IFP Act (‘IFP Act claim’).16 49 The judge identified that the respondent faced two obstacles to bringing such proceedings.17 First, the Succession Act, which commenced on 1 January 2025, may have precluded the respondent from bringing a claim if it had not been instituted before that date. It significantly restricts the rights of grandchildren of a testator to claim for further provision out of the estate. Second, he accepted that to bring an IFP Act claim, the claimant was required to serve the administrator of the estate. In view of the appellant’s intention not to obtain a grant of probate, a grant of administration was required for there to be an administrator of the deceased’s estate for the purposes of the IFP Act. He considered that unless a grant of probate or administration occurred before 1 January 2025, the appellant’s entitlement to pursue an IFP Act claim may have been lost.18 50 The appellant opposed the respondent’s application. He submitted that the application was an abuse of process and not an application made for the preservation and protection of the assets of the estate. He contended that the assets of the estate were not under any immediate threat and that the claim was a ‘stalking horse’ for facilitating a claim under the IFP Act.19 He submitted that the application was instituted for an ulterior purpose and, in any event, the evidence did not establish a need for such a grant where he had fully administered the estate.20 51 The primary judge rejected the appellant’s contentions, finding that the protection of the assets of the estate was a genuine, albeit secondary purpose. This secondary purpose was ‘inextricably linked’ to any IFP Act claim:21 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. 14 Salkanovic v Polites [2025] SASC 86. 15 [2025] SASC 86 at [19]. 16 [2025] SASC 86 at [20]. 17 [2025] SASC 86 at [20]. 18 [2025] SASC 86 at [20]. 19 [2025] SASC 86 at [21]. 20 [2025] SASC 86 at [21]. 21 [2025] SASC 86 at [22]. -- 15 of 58 -- [2026] SASCA 2 Bleby JA 12 52 The basis for the respondent’s concern regarding the protection of the assets of the estate stemmed from the appellant’s failure to act on his requests for the provision of information and documents relating to the estate.22 These included documents that were alleged to evidence the debt of $4,431,293.04 owed by the estate to Nominated Manager Ltd, a company controlled by the appellant.23 53 The appellant contended that he had not obtained probate because of the deficiency of assets in the estate. He asserted that he had fully administered the estate, which was insolvent with a deficit of approximately $2.8 million, for the reasons explained in the first and third Griffin affidavits. 54 There was limited evidence of the value of the estate. There was evidence that as at the date of her death, the deceased held shares in a number of Polites entities. On 27 March 2024, about three weeks after the deceased’s death, each of those shareholdings was transferred to Nominated Manager Ltd. The primary judge inferred that each of the Polites Group companies in which the deceased had held shares, controlled by the executor, had 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. 24 55 The only evidence supporting the claim that the estate was insolvent was contained in the affidavits of Mr Griffin. The primary judge explained the inadequacy of this evidence:25 In Mr Griffin’s affidavit of 6 December 2024 he deposed 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 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. 56 The trust deed was not in evidence. The appellant did not provide to the respondent any of that deed, the financial records requested or any document 22 [2025] SASC 86 at [66]. 23 [2025] SASC 86 at [32]. 24 [2025] SASC 86 at [25]. 25 [2025] SASC 86 at [26]. -- 16 of 58 -- [2026] SASCA 2 Bleby JA 13 evidencing the asserted indebtedness.26 The appellant’s assertion seemed to be that Nominated Manager Ltd lent monies to the deceased, which the appellant, as the executor of the estate, was obliged to repay to the company.27 The judge considered that the evidence, which was confined to the affidavits of Mr Griffin, did not establish that monies advanced by Nominated Manager Ltd for the deceased’s living, care and medical expenses was a loan.28 57 The judge observed that the respondent was entitled to a proper accounting of the deceased estate.29 He held that it was apparent that the appellant was not prepared to do so. Accordingly, he foreshadowed his conclusion:30 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. This approach has been taken in applications for limited grants of administration to permit the administrator to consider matters which warrant “careful investigation”. … 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. (Citations omitted.) 58 The judge relied on Mataska v Browne (‘Mataska’)31 in support of his conclusion that the respondent had standing. It will be necessary to return to this case. As to the circumstances in which it was appropriate to invoke the jurisdiction to grant letters of administration ad colligenda bona, the judge said:32 As Debelle J explained in In the Estate of Rowell (deceased), 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. In the Estate of Hilder 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 26 [2025] SASC 86 at [27]. 27 [2025] SASC 86 at [30]. 28 [2025] SASC 86 at [31]–[32]. 29 [2025] SASC 86 at [33], referring to In re Anthony; Rogan v Rogan [2017] VSC 668 at [16]; Richardson v Johnson [2018] VSC 85 at [53]–[54]. 30 [2025] SASC 86 at [35]-[37]. 31 [2013] VSC 62. 32 [2025] SASC 86 at [42]–[44], citing In the Estate of Rowell (deceased) (2006) 95 SASR 536 at 537; In the Estate of Hilder (1998) SASC 6549; Re Cohen (deceased) [1975] VR 187 at 189. -- 17 of 58 -- [2026] SASCA 2 Bleby JA 14 protection and preservation of the estate as the Court may direct, and the administrator may be given such powers as the Court deems fit. 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) 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. 59 The judge held the appellant had failed to comply with one of his fundamental duties by refusing or failing to provide the respondent with information regarding the estate that the respondent had sought and to which the respondent was entitled. This included documents evidencing the debt the estate was said to owe, valuations obtained from a third party and disclosure of whether the deceased was a beneficiary of the Ambassadors Trust. The appellant had not provided to the respondent the trust deeds or any financial records of the trust.33 60 The appellant pointed to allegations of abuse and harassment by the respondent set out in the second Griffin affidavit, and the respondent’s criminal history. He submitted to the judge that this amounted to disentitling conduct that, by reason of s 7(3) of the IFP Act would stand in the way of a claim under that Act. On that basis, the Court should refuse to grant the orders sought. 61 The judge considered that disentitling conduct would not provide a basis for the Court to refuse letters of administration ad colligenda bona in circumstances where an IFP claim had not yet been brought.34 He held that it would be premature to bring asserted disentitling conduct to account ahead of any IFP claim where that would be the subject of evidence. 62 The appellant also submitted before the primary judge that the proceedings were an abuse of process, given that the respondent’s predominant purpose in bringing the application was to facilitate a claim pursuant to the IFP Act. The judge did not accept this submission.35 He held that the evidence did not establish that the respondent had no intention of pursuing the application in order to preserve and protect the deceased’s estate. Rather, the respondent had a real interest in doing 33 [2025] SASC 86 at [47]. 34 [2025] SASC 86 at [55]. 35 [2025] SASC 86 at [61]-[62]. -- 18 of 58 -- [2026] SASCA 2 Bleby JA 15 so, which lay in bringing the IFP Act proceedings to a successful conclusion so as to take advantage of an entitlement or benefit conferred by law.36 63 The judge held that the conduct of the executor, including his dealing with the assets of the estate and his refusal to provide information and documents sought by the respondent, which partially justified the grant, gave rise to a degree of urgency in taking steps to protect the assets.37 He concluded:38 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. In Official Receiver in Bankruptcy v Schultz the High Court said: 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. 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. Stay Applications 64 On 20 December 2024, the primary judge ordered an interim stay of his order. On 14 January 2025, he heard the appellant’s application for a stay pending appeal. On 18 June 2025, he made orders refusing the application and revoking the interim stay. He published reasons for his decision.39 65 The judge ordered an interim stay for seven days to enable the appellant to apply for leave to appeal to the Court of Appeal. A judge of the Court of Appeal 36 [2025] SASC 86 at [62]-[63]. 37 [2025] SASC 86 at [65]. 38 [2025] SASC 86 at [66]–[69]. 39 Salkanovic v Polites (No 2) [2025] SASC 101. -- 19 of 58 -- [2026] SASCA 2 Bleby JA 16 extended the interim stay pending hearing and determination of the applications and the appeal filed by the appellant. 66 On 3 July 2025, two judges of the Court of Appeal heard two applications and an appeal brought by the appellant. The applications included: (1) a renewed application for a stay pending appeal to the Court of Appeal; and (2) an application for permission to appeal the primary judge’s refusal of a stay pending appeal. These applications were listed for hearing in conjunction with the appellant’s appeal against the primary judge’s refusal of a stay (in the event that he was granted permission to appeal). The judges delivered ex tempore reasons dismissing the applications for a stay pending appeal and for permission to appeal against the primary judge’s refusal of a stay.40 67 The issues for determination on appeal by this Court relate to the orders made by the primary judge on 10 December 2024. The appeal 68 Before coming to the grounds of appeal, it is necessary to consider the Court’s power to make limited grants of administration and the differences between types of limited grant. The appellant’s complaints require an understanding of what is meant by a grant of administration ad colligenda bona in the context of the Court’s contemporary powers. Limited grants of administration 69 The Supreme Court, pursuant to s 18(1) of the Supreme Court Act 1935 (SA) (‘Supreme Court Act’) and now subject to the Succession Act, is vested with the jurisdiction for all purposes the Court considers appropriate: (a) to make and revoke a grant of probate of the will or letters of administration of the estate of any deceased person; and (b) to hear and decide all testamentary matters; and (c) to hear and decide all matters relating to the estate and the administration of the estate of any deceased person. 70 Prior to commencement of the Succession Act, and at the time of the application before the primary judge, the Administration and Probate Act 1919 (SA) (now repealed) governed grants of probate and letters of administration. Section 4 of that Act defined ‘administration’ and ‘administrator’ as follows: administration means all letters of administration of the effects of deceased persons, whether with or without the will annexed, and whether granted for general, special, or limited purposes; administrator means any person to whom administration has been granted; 40 Polites v Salkanovic [2025] SASCA 74 (Ex tempore reasons). -- 20 of 58 -- [2026] SASCA 2 Bleby JA 17 71 A general grant of letters of administration confers general powers on an administrator to act on behalf of the estate until the administration of the estate is finalised. A limited grant, by contrast, confers on the administrator specific and confined powers to act on behalf of the estate, usually for a particular purpose. 72 When describing the different forms of grant in the contemporary context, it is necessary to bear in mind that the jurisdiction of the Court is flexible, in that it can tailor the form of a grant to the needs of the estate at a given time. The Court will exercise the power to make a limited grant when, for some reason, it is not possible or appropriate to make a general grant. 73 Two of the most common forms of limited grant, which are also the most relevant for present purposes, are grants of administration ad colligenda bona and grants of administration ad litem. It will be necessary to discuss these in some detail. Another common form is a grant pendente lite (to permit administration of an estate to carry on while litigation of a claim to a general grant is pending). Less common forms include grants de bonis non (where an executor or administrator dies or goes missing before fully administering an estate), durante minore aetate (during the minority of an executor or some other person entitled to a grant), durante absentia (for a period of absence from the jurisdiction of an executor or other person entitled to a grant) and durante dementia (while an executor or administrator is incapacitated). 74 Limited grants may therefore be for a confined purpose or for a confined period of time (or both). Each described form is, in its essence, directed to the specific requirements of the estate in circumstances where a general grant is, for whatever reason, not available. Grants ad colligenda bona 75 A grant of letters of administration ad colligenda bona is, in terms, a grant ‘to collect the goods’. It is commonly understood as a grant that allows a person with standing to collect, preserve and protect assets that are precarious or perishable in nature where there is an unavoidable delay in the Court granting representation.41 It is usually made in circumstances of urgency, for the purpose of protecting a particular asset of the estate.42 76 In 1878, HC Coote explained the practice in the United Kingdom:43 The court is not bound to wait for the application of persons entitled to an estate (ex testamento or ab intestato), but, when it may be endangered by delay in administering, the court may grant letters ad colligendum for the purpose of preserving the estate, without regard to the interest of the party applying [citing Walker v Wollaston, P. Wms. vol. ii. p.584]. This form of grant is now obsolete. 41 Re Cohen (deceased) [1975] VR 187 at 188 (Gillard J); In the Estate of Rowell (2006) 95 SASR 536. 42 Re Brown [2021] VSC 119 at [15]. 43 HC Coote, The Common Form Practice of The High Court of Justice in Granting Probates and Administrations (Butterworths, London, 8th ed, 1878), p 156. -- 21 of 58 -- [2026] SASCA 2 Bleby JA 18 In lieu of this obsolete form of delegation, the court now grants letters of administration for the same purpose of collecting and preserving precarious and perishable property. These letters of administration will be granted not only to anyone whom the court considers for the occasion eligible, but will also be made to the persons who are entitled to a full grant, but in the interests of the estate cannot wait [citing Chas. Clarkington, 10 W.R. p.124; 2 Swabey & Tristram, p.382]; or to entire strangers, whom mere chance has brought into connexion with the affair [citing Gudolle, post, and Wychoff, 15 Law Mag. p.17, and 3 Swabey & Tristram, p.22]. 77 These letters of administration are described only in the margin of the work as being for the purpose of ‘Administration ad colligenda bona’. The focus of the commentary is not on the descriptive name of the grant, but the purpose, being that of ‘collecting and preserving precarious and perishable property’. 78 By 2020, the successor title to this work explained the nature of the grant by maintaining the descriptive title, and explicating the purpose:44 Administration ‘ad colligenda bona’ (‘collection grant’) 11.384 When the estate of a deceased person may be endangered by delay in administering it, the court is not bound to wait for an application by the person entitled to a grant under the rules, but may grant letters of administration ad colligenda bona for the purpose of preserving the property45. In the proposed replacement or revision of the Non-Contentious Probate Rules and practice, this type of grant is referred to as a collection grant. The grant is limited for the purpose of collecting, getting in and receiving the estate and doing such acts as are or may be necessary for its preservation and it may include specific or express power to do certain acts in connection with the estate such of sale of particular property. (Citation in original.) 79 This understanding of the grant holds in Australia. Dal Pont and Mackie explain:46 Administration ad colligenda bona 11.56 A further form of limited administration is termed administration ad colligenda bona, that is, ‘to collect the goods’. From early times in England, grants of a limited administration were made by the Court of the Judge Ordinary for the purpose of collecting property of a deceased that was perishable or of a precarious character, and there would be unavoidable delay in the court granting probate or general administration. Though historically confined to preserving personal property, changes to statute extended the grant to encompass real property. (Citations omitted.) 44 RR D’Costa, P Teverson and T Synak, Tristram and Coote’s Probate Practice (LexisNexis, UK, 32nd ed, 2020), p 546. 45 Re Clore [1982] Ch 456, [1982] 3 All ER 419, CA (limited grant made to Official Solicitor following delay of over two years by executors in applying for probate). 46 GE Dal Pont and KF Mackie, Law of Succession (LexisNexis Butterworths, Australia, 2nd ed, 2017), p 369. -- 22 of 58 -- [2026] SASCA 2 Bleby JA 19 80 The Probate Rules, contained within the UCR, which came into effect on 1 January 2025, and which therefore do not apply to this matter, reflect this understanding that a grant of administration ad colligenda bona is made for the purpose of preserving or protecting a particular asset of the estate: 355.4—Grant ad colligenda bona (1) An application for a grant ad colligenda bona to preserve or protect a particular asset of the estate pending delay in obtaining a full grant must be made by lodging an Originating Application in the prescribed form supported by an affidavit in the prescribed form. 81 There are numerous instances of a grant of this kind being made in Australia. In Re Cohen (deceased), Gillard J explained:47 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 authorize some person to collect and protect the assets of the estate until 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 promptly obtained after death and the nature of the assets of the deceased require that something be done about their administration for their protection. 82 This statement encapsulates that the foundation for a grant lies in the need to take action to protect the assets of the deceased. The cases and the commentary have tended to focus on where an asset is of a perishable or precarious character; that is a circumstance that provides a clear example of the need for urgent protective action. 83 However, that is not the only instance in which a limited grant ad colligenda bona has been made. In In the Goods of Peter Richmond Wyckoff (‘Wyckoff’),48 the deceased died on board a steamship en route from Nassau to London. He had on his person four bills of exchange drawn at Mobile, Alabama (his home town) on merchants at Liverpool, indorsed to his order, amounting to £680, as well as gold, cash and other personal property. This property had all come into the hands of the owners of the ship. A further sum of £379 was held by a third party. The passage money of the deceased remained owing to the ship owners, who had no security for the debt. 84 There was no reason to believe that the deceased had any relatives, attorney or agent in England. Moreover, the southern ports of North America were blockaded on account of the American civil war. The prospect of communicating with any relatives of the deceased in the southern states was beset with difficulty and uncertainty. 47 Re Cohen (deceased) [1975] VR 187 at 189. See also Re Brown [2021] VSC 119 at [15] (McMillan J). 48 (1862) 3 Sw & Tr 20; 164 ER 1178. -- 23 of 58 -- [2026] SASCA 2 Bleby JA 20 85 One of the owners of the ship, Mr Isaac, applied for letters of administration ad colligendum bona on the basis:49 That it was desirable that no greater delay should take place in presenting the said bills of exchange, and in obtaining payment of the sum of £379, and that there should be a legal personal representative of the deceased in this country to give proper discharges to the person who may accept and be prepared to meet the said bills, and pay the said sum. 86 There was no suggestion in this case that any asset was physically or commercially wasting. However, the effective limbo in which the assets located in England were placed was sufficient to make an order for their protection. Sir C. Cresswell held:50 It is no doubt of importance that the property of the deceased in this country should be protected; and after what has been to-day stated by the Queen’s Advocate, I will, under the authority of the 73rd section of the Probate Act, make the grant to his client, limited for the purpose of realizing and collecting the property which the deceased died possessed of or entitled to within the jurisdiction of the Court, and to invest the proceeds of such property in the Three per Cent. Consols, till an ordinary representation shall have been legally obtained, but no further or otherwise. 87 The grant in this case appears to have been made simply on account of the difficulty in communicating with the southern American states and the absence of any person in the jurisdiction with a connection to the deceased, even as correspondent or agent. The Court made the grant to one of the ship’s owners who, by happenstance, had become a creditor. The powers contained within the grant were, correspondingly, closely circumscribed. 88 The Court in Wyckoff referred to the case of In the Goods of Don Miguel Gudolle (‘Gudolle’),51 which was also cited in the passage extracted from Coote,52 above. Gudolle was a case from 1835. No report of it was available to the Court in Wyckoff, but that Court called up the papers from the registry and recounted the facts in its judgment. In Gudolle the deceased, a resident of Peru, had in March 1835 enclosed in a letter to a Thomas Stooks six bills of exchange amounting to £1,932. The bills were drawn on merchants in London and indorsed by the deceased to the firm of Mr Stooks. The deceased said in his letter that he intended to proceed to London in April. He arrived in London on 6 May and died the following day. He was then found to be in possession of a further six bills of exchange, drawn on persons in London, to the amount of £2,250. 49 In the Goods of Peter Richmond Wyckoff (1862) 3 Sw & Tr 20; 164 ER 1178 at 1179. 50 In the Goods of Peter Richmond Wyckoff (1862) 3 Sw & Tr 20; 164 ER 1178 at 1180. 51 (1835) 3 Sw & Tr 22. 52 HC Coote, The Common Form Practice of The High Court of Justice in Granting Probates and Administrations (Butterworths, London, 8th ed, 1878), p 156. -- 24 of 58 -- [2026] SASCA 2 Bleby JA 21 89 Mr Stooks took charge of all the bills. It transpired that the deceased had died a bachelor, intestate, but with a mother and several brothers in Peru. As the Court in Wyckoff explained of Gudolle:53 On the 30th of May, 1835, after reading the affidavits and hearing counsel thereon, the Surrogate decreed letters of administration to Thomas Stooks, limited to receive the sums due and to become due on the last-mentioned bills of exchange; and after reimbursing himself the sum of £100, or thereabouts, and paying the expenses of obtaining administration, to invest the balance, and also the sum of £1932 in his own name in Government securities, and to keep the same so invested until letters of administration of the goods of the deceased should be granted according to law, on exhibiting an inventory and securities justifying. 90 In Gudolle then, like in Wyckoff, the urgency of the grant arose not on account of any specific wasting asset, but of the tyranny of distance. The only material difference related to the interest of the applicant: in Gudolle, the deceased had invested Mr Stooks with the character of his agent. In Wyckoff, the applicant was just the owner of the ship who was owed for the passage of the deceased. Again, the grant was closely prescribed in its terms. 91 In both these cases, the grants were described either in the commentary or the terms of the application as grants ad colligendum or ad colligenda bona. However, in both cases the focus of the court was simply on what was necessary to protect the estate in the circumstances. 92 One of the more common instances of a grant of this kind being sought and made is where it has been necessary to maintain a business, so as to protect that business as an asset of the estate.54 93 In In the Estate of Rowell,55 the wife of a deceased solicitor had been appointed sole executor of the estate provided she survived her husband by one month. She was not a legal practitioner and wished to sell the practice. However, in order to achieve that, she required an order under s 50 of the Legal Practitioners Act 1981 (SA). That section permits the personal representative of a deceased legal practitioner to carry on the practice of that practitioner for a period (ordinarily not more than 12 months) with the authority of the Supreme Court. 94 The practice employed practising solicitors, but the death of the deceased placed restrictions on the capacity of those employees to conduct the business of the firm.56 As the wife could not apply for a grant of probate for a month, she 53 In the Goods of Peter Richmond Wyckoff (1862) 3 Sw & Tr 20; 164 ER 1178 at 1180. 54 See, e.g., In the Goods of Bolton [1899] P 186 (Gorell Barnes J) (where the deceased had no next-of- kin in the country and his business was required to be sold immediately in order to realise the value of the goodwill); In the Estate of Rowell (2006) 95 SASR 536; Re Estate of the late Tanju (Andrew) Assim [2015] NSWSC 337 (limited to preserving the value of a real estate business from damage that would flow from an inability to disburse money from the rent roll). 55 (2006) 95 SASR 536. 56 In the Estate of Rowell (2006) 95 SASR 536 at [5]. -- 25 of 58 -- [2026] SASCA 2 Bleby JA 22 applied for letters of administration ad colligenda bona in order to make the necessary application pursuant to s 50. 95 Justice Debelle outlined the principles attending on a grant of this nature, reflecting the understanding set out above:57 An administrator ad colligenda bona is a person to whom the court has made a limited or temporary grant of letters of administration for the purpose of collecting the property or part of the property of a deceased person where that property is of a perishable or precarious nature or where a regular administration cannot be granted at once… The object of a grant of this kind is to enable an administration where there is a wasting asset, that is to say, an asset which may deteriorate or diminish in value, and it is not possible for a person to apply for a grant of probate or letters of administration in a timely manner. The purpose is to enable the protection and preservation of the asset. The administration is limited for the purpose of protecting and preserving the asset and may be granted to any fit person. 96 Justice Debelle held that it was ‘desirable that a grant of letters of administration ad colligenda bona be ordered to enable [the wife] to make that application’. The terms of the orders are relevant to the issues raised on the current appeal. I set the relevant orders out in full: 1. That letters of administration of the estate of Hugh Grant Rowell deceased be granted to Heather Margaret Rowell limited to: (a) Collecting, getting in and receiving that part of the personal estate of the deceased which is represented by the legal practice of Rowell Forrest & Co and any assets connected, directly or indirectly, to that practice and in doing such acts as may be necessary for the preservation of the same and until such time as a grant of probate is made of the will of the deceased, Hugh Grant Rowell. (b) Applying to the Supreme Court of South Australia pursuant to s 50 of the Legal Practitioners Act 1981, to carry on the practice of Rowell Forrest & Co subject to such conditions as the court may determine, and if so authorised to get in and collect that part of the personal estate of the deceased which is represented by the legal practice of Rowell Forrest & Co and any assets connected directly or indirectly to that practice, with power to take legal proceedings for the recovery thereof and to give receipts therefor and to operate on any bank accounts for the practice, including the trust account, and generally to do all things necessary or expedient for the carrying on of the practice with or without any of the assets relating thereto until such time as a grant of probate is made of the will of the deceased Hugh Grant Rowell. 2. Liberty to apply. (Emphases added.) 97 In addition to requiring powers of collecting (only) the assets of the estate that were part of the legal practice, the nature of the business that required 57 In the Estate of Rowell (2006) 95 SASR 536 at [2]-[3]. -- 26 of 58 -- [2026] SASCA 2 Bleby JA 23 protecting was such that the orders extended to a grant of power to make an application under s 50 of the Legal Practitioners Act 1981 (SA) and to take legal proceedings for the recovery of assets. The limits of the grant remained tightly circumscribed, but in this case, it was necessary to go further than to grant a mere power to collect. Notwithstanding the description in the judgment of the grant as a grant ad colligenda bona, it extended in its substance to powers that might be thought to overlap with the concept of a grant ad litem. 98 This case illustrates that the focus in a given case is the powers that are necessary for the Court, in the exercise of its broad and flexible jurisdiction, to ensure the protection of the estate in the circumstances presenting. 99 Nevertheless, in circumstances where the appellant submitted that the respondent should, in the circumstances, have applied for a grant ad litem, it is necessary to examine that type of grant. Grants ad litem 100 A grant ad litem (‘for the suit’) describes a grant made for the purposes of enabling the estate to be represented by an administrator so as to defend, commence and prosecute legal proceedings. An early recorded example of a grant of this nature occurred in the 1843 decision of Faulkner v Daniel.58 The Vice Chancellor, Sir James Wigram, explained the necessity, when obtaining a limited grant of administration, that the grant be sufficient to ensure representation in any identified suit. Conversely, the capacity of an estate to be represented will be set by the limits of the grant:59 In principle, I think it is clear that, where a limited administration is granted by the proper Ecclesiastical Court, and the limited administrator is made a party to a cause, the estate of the deceased is perfectly represented for all purposes, to the extent of the authority conferred by the letters of administration. A Court of exclusive jurisdiction has power to grant letters of administration, and, to whatever extent that Court grants administration, to that extent the estate will be represented in any suit to which the administrator is a party. It is not inconsistent with this to say that, if the administration granted be more limited than the purpose of the suit require, and it is in the power of the Plaintiff to obtain a general or more extensive representation, the Court may require the Plaintiff to do the utmost he can to make the suit perfect by obtaining a representation commensurate with the object of the suit, or as nearly so as the practice of the Ecclesiastical Court will enable him… 101 In Greenway v McKay,60 the deceased had died intestate from injuries he suffered in the course of his employment. He was survived by his widow and one child. The widow applied for administration of the estate, which had only a few pounds value of personal property and no real property. The widow gave notice of a claim against the employer but had no funds to pursue the claim. 58 (1843) 3 Hare 199; 67 ER 355. 59 Faulkner v Daniel (1843) 3 Hare 199 at 207-208; 67 ER 355 at 359. 60 (1911) 12 CLR 310. -- 27 of 58 -- [2026] SASCA 2 Bleby JA 24 102 The widow subsequently opened a small shop and wished to commence proceedings. The action was required to be commenced within 12 months of the death, which was about to expire. The widow made an urgent application for a grant ad litem so as to be able to commence proceedings. A judge of the Supreme Court of Vicotria made the grant, seemingly ex parte, limited to the purpose only of bringing the foreshadowed action against the employer. The widow commenced proceedings. The judge subsequently revoked the grant on the application of the employer, on the basis that the grant had been sought for the benefit of the widow and child, not the estate, and there was no suggestion that the estate itself was in jeopardy. 103 The widow appealed against the order revoking the grant. The High Court allowed the appeal. Griffith CJ remarked:61 Although administration limited to bringing an action is not, in one sense, for the protection of the assets of the estate—that is, the physical assets—yet that limited administration is granted in order to secure for the estate what would not otherwise be available as assets, which is the same thing in principle. If what might so become available is in danger of being lost, surely that is the best reason for prompt action, and the granting of administration for the purpose of bringing an action is just as much for the benefit of the estate as a general grant which is for the benefit of the persons interested in the estate, that is, the next of kin. With regard to the claim sought to be enforced against the respondent, certain persons only are entitled by law to share in the money when recovered, but the fact that the administrator is trustee for a limited class of the next of kin instead of the creditors and next of kin as a whole makes no difference in principle. 104 The issue was whether, where there was no risk to any asset of the estate, the grant was for the benefit of the estate. The High Court confirmed the availability of the grant on the basis of the danger to the estate of the loss of a cause of action available to it, rather than the risk to a physical asset. Thus O’Connor J observed:62 When the matter came before the learned Judge on the second occasion he seems to have taken the view that his jurisdiction to act under r. 15 was limited to cases in which the estate was in jeopardy, and the application must be for the protection of the assets of the estate. I see no ground under any circumstances for so limiting the jurisdiction, but, in regard to this special grant made, not for the purpose of dealing with existing assets and collecting new, but for another purpose altogether, it seems to me it is quite immaterial whether there is an estate, or whether there is any money in the estate. I think, therefore, the ground upon which the learned Judge acted in making the second order had really no foundation in law. 105 A grant ad litem stems from the absence of a personal representative. It is ‘limited to the object of the suit and premised on the action being within the jurisdiction where the grant is sought’.63 106 It is often not necessary for any Australian court to make a formal grant of administration ad litem where proceedings are on foot. In each Australian 61 Greenway v McKay (1911) 12 CLR 310 at 316. 62 Greenway v McKay (1911) 12 CLR 310 at 320. 63 GE Dal Pont and KF Mackie, Law of Succession (LexisNexis Butterworths, Australia, 2nd ed, 2017), p 369 [11.53]. -- 28 of 58 -- [2026] SASCA 2 Bleby JA 25 jurisdiction, the rules of Court generally empower the Court to appoint a person to represent a deceased estate that has an interest in a proceeding where there is no personal representative. Thus, for example, pursuant to UCR r 22.5(3)(c), where a party to proceedings dies after an action or appeal has commenced, and the cause of action, right to seek relief or appeal survives, the Court can make an order appointing a representative of the estate for the purpose of the proceeding. 107 Nevertheless, the power to make a grant ad litem remains with respect to both existing and proposed litigation. It is presently facilitated by UCR r 355.6: 355.6—Grant ad litem (1) An application for a grant ad litem for the purpose of representing the estate in existing or proposed litigation by or against an external party (external litigation) pending delay in obtaining a full grant must be made by lodging an Originating Application in the prescribed form supported by an affidavit in the prescribed form. The recognised descriptive forms of grants do not curtail the power of the Court 108 As observed earlier, the Court’s probate jurisdiction is grounded in s 18 of the Supreme Court Act. This section provides: 18—Testamentary jurisdiction (1) Subject to this Act and the Succession Act 2023, the court has jurisdiction, including jurisdiction for all purposes the court considers appropriate— (a) to make and revoke a grant of probate of the will or letters of administration of the estate of any deceased person; and (b) to hear and decide all testamentary matters; and (c) to hear and decide all matters relating to the estate and the administration of the estate of any deceased person. (2) The court may make any declaration, and make and enforce any order, that may be necessary or convenient in the exercise of its jurisdiction under the Succession Act 2023. 109 Prior to 1 January 2025, s 18(c) of the Supreme Court Act provided that the Court had all probate jurisdiction which, under or by virtue of any enactment not repealed by the Supreme Court Act, was vested in or capable of being exercised by the Court. Section 5 of the Administration and Probate Act 1919 (SA) provided: 5—Probate jurisdiction of Supreme Court (1) The like voluntary and contentious jurisdiction and authority as immediately before the coming into operation of this Act belonged to or were vested in the Supreme Court, in relation to granting or revoking probate of wills and letters of administration of the effects of deceased persons, shall be vested in and exercised by the said Court in relation to granting or revoking probate of wills and letters of administration of the estate, as well real as personal, of deceased persons within the said State; and the Court shall have the same power of granting probate or -- 29 of 58 -- [2026] SASCA 2 Bleby JA 26 administration, where the only estate within the State consists of realty, as if such estate comprised both realty and personalty. (2) The said Court shall also have and exercise the like powers, and its grants and orders shall have the like effect within the said State, in relation to the real and personal estate therein of deceased persons, as immediately before the coming into operation of this Act the said Court and its grants and orders respectively had within the said State, in relation to those matters and causes testamentary, and those effects of deceased persons, which were within the jurisdiction of the said Court. (3) All duties which by statute or otherwise were, immediately before the coming into operation of this Act, imposed on or to be performed by the said Supreme Court in respect to probates, or administrations, or matters or causes testamentary within its jurisdiction shall continue to be performed by such Court within the said State. 110 Section 21 of the Administration and Probate Act 1919 (SA) provided: 21—Practice of the Court The practice of the Court in its testamentary causes jurisdiction shall, except where otherwise provided by the rules, be according to the practice of the Supreme Court immediately before the coming into operation of this Act. 111 In In the Estate of Rowell, Debelle J summarised the history of the jurisdiction to make a grant ad colligenda bona:64 In making these orders, the court is exercising the jurisdiction vested in it by s 5 of the Administration of Probate Act 1919 (SA) and by s 18 of the Supreme Court Act 1935 (SA). That jurisdiction is ultimately founded on the jurisdiction of the Court of Probate in England immediately after the Court of Probate Act 1858 (UK): see ss 6 and 14 of the Testamentary Causes Act 1867 (SA). The history of the jurisdiction is noted by Napier J in Re Kuhl; Kuhl v Liebcheschel [1933] SASR 394. See also Re Swale [1940] SASR 391 at 394; In Estate of Smith (1972) 2 SASR 477; In Estate of Edwards (1981) 28 SASR 380 and Re Estate of Crane (2005) 93 SASR 198 at 202-203. Nothing is to be gained by adding to these discussions. It is sufficient to note that there is clear authority for the jurisdiction to make the order. 112 In In Estate of Crane,65 Besanko J traced in detail the history of the Court’s testamentary jurisdiction. Crane was a passing over case. Justice Besanko observed that there was no specific section in the Administration and Probate Act giving the Court power to make an order passing over an executor in the circumstances of that case.66 The jurisdiction would necessarily have to have formed part of the jurisdiction of the Court of Probate established in England under the Court of Probate Act 1857 (UK) and then maintained under the Administration and Probate Act 1919 (SA) and its predecessor.67 64 In the Estate of Rowell (2006) 95 SASR 536 at [4]. 65 (2005) 93 SASR 198. 66 In Estate of Crane (2005) 93 SASR 198 at [17]. 67 In Estate of Crane (2005) 93 SASR 198 at [18]. -- 30 of 58 -- [2026] SASCA 2 Bleby JA 27 113 Justice Besanko examined the authorities later referred to by Debelle J in In the Estate of Rowell. One of these was Re Swale,68 in which Napier J considered whether the Court had power to grant letters of administration to a stranger. That power had been expressly given by s 67 of the Testamentary Causes Act 1867 (SA), but that Act had been repealed, and the section not expressly re-enacted. However, Napier J held that the section was declaratory of the jurisdiction of the Court of Probate in England. Section 18 of the Supreme Court Act had nonetheless conferred all the inherent powers and authorities which were formerly possessed by that Court. 114 Then, in In the Estate of Smith,69 Walters J referred to Re Noblet70 (which was also referred to by Napier J in Re Swale) in which the Full Court held that s 67 of the Testamentary Causes Act 1867 (SA) had been ‘kept alive’ by s 25 of the Administration and Probate Act 1891 (SA) (the precursor to s 21 of the Administration and Probate Act 1919 (SA)). Section 67 had enacted, with modifications, s 73 of the Court of Probate Act 1857 (UK). Section 67 provided: Where a person has died or shall die wholly intestate as to his personal estate, or leaving a will affecting personal estate, but without having appointed an executor thereof willing and competent to take probate, or where the executor shall at the time of the death of such person be resident out of the said Province, and it shall appear to the Court to be necessary or convenient in any case, by reason of the insolvency of the estate of the deceased or other special circumstances, to appoint some person to be administrator of the personal estate of the deceased or of any part of such personal estate other than the person who, if this present provision had not been made, would by law have been entitled to a grant of administration of such personal estate, it shall not be obligatory upon the Court to grant administration of the personal estate of such deceased person to a person who but for this present provision would by law have been entitled to a grant thereof, but the Court may in its discretion appoint such person as to the Court may seem fit to be such administrator, upon his giving such security (if any) as the Court shall direct; and every such administration may be limited as the Court shall think fit. (Emphasis added.) 115 Justice Walters explained that as s 67 was declaratory of the inherent jurisdiction of the Court of Probate, the power to grant letters of administration with the will annexed to a stranger was within the inherent jurisdiction of the Court of Probate and thus of the Supreme Court of South Australia. 116 For present purposes, this jurisdictional history also grounds the basis of the jurisdiction of the Court to make limited grants. The emphasised passage of s 67 of the Testamentary Causes Act 1867 (SA), above, shows that the jurisdiction conferred on the Supreme Court to make limited grants was unconfined by form; an administration could be limited as the Court thought fit. 68 [1940] SASR 391. 69 (1972) 2 SASR 477. 70 Re Noblet, Unreported, Full Court of the Supreme Court of South Australia, 16 June 1896, (Way CJ, Boucaut and Bundey JJ). -- 31 of 58 -- [2026] SASCA 2 Bleby JA 28 117 Practice and precedent see the Courts continuing to apply descriptions such as ‘ad colligenda bona’ and ‘ad litem’ to particular forms of grant. However, the jurisdictional history shows that these Latin common law descriptions do not represent confined jurisdictional boundaries. They are descriptive forms of limited grant. The Court has power to make a limited grant in whatever terms are necessary to protect the interests of the estate. 118 Greenway v McKay71 neatly highlights the descriptive difference between grants ad litem and grants ad colligenda bona. The current UCR maintain that distinction. However, as In the Estate of Rowell72 shows, limited grants may be fashioned to serve the combined purposes of asset protection and the commencement, defence and conduct of proceedings. For example, a limited grant to facilitate the commencement of proceedings, in order to get in an asset that is presently represented only by a cause of action, may be made in circumstances of urgency where a time limit is shortly to expire. Again, it all depends on what the circumstances require. 119 Mataska,73 on which the primary judge in the present matter relied in support of his conclusion that the respondent had standing to apply for a limited grant, provides an example of a fashioning of orders for a limited grant without regard to common law description. 120 In 2009, the deceased (aged 86) executed her last will, by which she appointed the defendant as her executrix and left the whole of the estate to her, without provision for her other child (the plaintiff). A little over a year later, in April 2011, the deceased (then aged 88) sold her home, which was her major asset. The entire proceeds were used to purchase another property in the joint names of the deceased and the defendant. Settlement on that property occurred in October 2011. 121 In April 2012, the deceased was placed in palliative care. She died in May 2012, aged 89. Her estate comprised $12,640.18, out of which expenses of $7,734 were paid. The defendant did not apply for a grant of probate, on the basis that it was not necessary to take out a grant to administer the small amount remaining, and in respect of which she was the beneficiary. The newly jointly owned property passed to the defendant by way of survivorship. 122 The plaintiff took the position that the purchase of the jointly owned property was liable to be set aside. To that end, she filed a motion seeking: • a limited grant of letters of administration with the will annexed of the estate of the deceased; 71 (1911) 12 CLR 310. 72 (2006) 95 SASR 536. 73 Mataska v Browne [2013] VSC 62. -- 32 of 58 -- [2026] SASCA 2 Bleby JA 29 • that the defendant be passed over as the executor of the estate of the deceased; and • a declaration that the defendant held the property on trust for the estate of the deceased. 123 The defendant applied to dismiss the proceeding as disclosing no cause of action or on the ground that it had no real prospect of success. 124 Justice McMillan held that the circumstances of the transfer of the property warranted careful investigation. There was a live issue to be determined having regard to the due and proper administration of the estate.74 The primary issue in the case, however, was whether the plaintiff had standing to apply either for a limited grant or for the passing over of the defendant as executor. In this regard, McMillan J reviewed the case law that to some extent was conflicting, as to whether a possible claim under family provision legislation provided a sufficient interest to create standing to apply for a limited grant.75 125 Following a review of these authorities, McMillan J held that notwithstanding the lack of a present interest, the plaintiff’s reasonable prospects of success in a family provision claim were enough to establish a prima facie interest in the estate and the administration of the estate. Put briefly, her Honour 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. This was in circumstances where it was apparent the defendant would not undertake any investigation into the inter vivos transactions.76 126 The question of the respondent’s standing to seek a limited grant is the subject of a separate complaint on this appeal. For present purposes, there are features of Mataska that are comparable with this matter. Specifically, there was no identified wasting or otherwise precarious asset. Rather, the desirability of a limited grant lay in the need to investigate the circumstances of the transfer of the real property prior to the deceased’s death. The plaintiff’s standing was grounded in her reasonable prospects of success in a prospective family provision claim. 127 Justice McMillan in Mataska did not seek to classify the limited grant as a grant ad colligenda bona, ad litem, or by the use of any other common law description. Rather, she simply described the relief she proposed to give as a limited grant, the form of which remained to be determined:77 The extent of the plaintiff’s interest in the estate in any Part IV claim relates to the assets in the estate of the deceased and, as stated, my view is that the circumstances relied upon 74 Mataska v Browne [2013] VSC 62 at [33]-[34]. 75 Wood v McLean (2010) 31 VR 12; [2011] VSCA 37; Van Wyk v Albon [2011] VSC 120; Re Culina; Poulos v Pellicer [2004] NSWSC 504; Arbuz v Sanderson Unreported, Supreme Court of New South Wales, 24 March 1986, (Waddell J); Hogarth v Johnson [1987] 2 Qd R 383. 76 Mataska v Browne [2013] VSC 62 at [49]-[52]. 77 Mataska v Browne [2013] VSC 62 at [55]-[57]. -- 33 of 58 -- [2026] SASCA 2 Bleby JA 30 by the plaintiff demonstrate that there should be a ‘careful investigation’ as to whether the inter vivos transactions should form part of the estate. The defendant, for the reasons set out, will not undertake that investigation. Accordingly, having regard to the due and proper administration of the estate; the interests of those beneficially entitled to the estate; and the interests of the plaintiff in the estate of the deceased, I am satisfied that a limited grant of administration should be made in this matter and that the plaintiff has standing. I will hear the parties as to the form of order, the appropriate person to be appointed as administrator and costs. Otherwise, I dismiss the defendant’s summons filed 27 September 2012 to dismiss the proceeding. 128 The primary purpose of the limited grant that McMillan J proposed to make was investigation. The reasons do not suggest that her Honour proposed to extend the limited grant to the conduct of any family provision claim proposed to be brought by the plaintiff. Neither was there any suggestion of a wasting asset; the point of contention was whether certain real property was properly part of the estate. 129 Mataska provides a helpful example of the flexible nature of the jurisdiction to make a limited grant. Circumstances of urgency may arise that require the Court to exercise the jurisdiction in order to protect the estate. That may not necessarily be on account of an identified wasting or precarious asset, such as a business. Uncertainty may be sufficient to move the Court to act protectively, in the first instance to facilitate an investigation into the estate where a named executor has not applied for probate and evidence identifies circumstances that warrant investigation. The Court can tailor the grant to circumstances of the estate that require its protection. 130 That being the case, while there are well recognised forms of grant that meet the descriptions ‘ad colligenda bona’ and ‘ad litem’, the Court’s powers are not confined to making a grant in one or other form. In the Estate of Rowell78 provides an example of orders crafted to get in part of an estate in circumstances of urgency, but also to empower the administrator to commence proceedings. Nevertheless, Debelle J described (with respect, appropriately) the grant as being ad colligenda bona as this description reflected the protective purpose in getting in assets in circumstances of urgency. Ultimately, however, that was just a description which, in its historical terms, does not account for the powers to commence proceedings. Justice Debelle nonetheless also granted limited powers to that end in aid of the primary purpose. 131 Similarly, as Mataska79 illustrates, the circumstances of the estate, when the executor has not applied for probate, may require an initial investigation into the assets. It will be necessary to craft orders to make clear the extent of the investigation authorised. That is hardly surprising: every executor’s function of 78 (2006) 95 SASR 536. 79 Mataska v Browne [2013] VSC 62. -- 34 of 58 -- [2026] SASCA 2 Bleby JA 31 getting in assets will generally require an investigation of sorts, even if it is no more than making enquiries of financial institutions as to whether the deceased held any account with them or simply examining the deceased’s records. Such powers are encompassed by a general grant; a limited grant, by contrast, is required to be clear about the extent — the limits — of the powers. That said, even limited powers will likely carry necessary implications, as the form of limited grant in In the Estate of Rowell80 shows. 132 In In the Estate of Hilder,81 on which the primary judge relied, Williams J observed: The court is empowered to make an order for administration ad colligendum bona where delay in securing the general estate administration may imperil the property. In such a case the court may grant to any fit person administration limited to the collection of the property of the deceased and for such further purposes for the protection and preservation of the estate as the court may direct; the administrator so constituted may be given such powers as the court deems fit. The practice in this behalf is identified in Mortimer on Probate 2nd ed at 394-395 and in Tristram and Cootes Probate Practice 15th ed at 172-173. 133 The cases illustrate the flexibility of the jurisdiction that traces back to s 73 of the Court of Probate Act 1857 (UK). A limited grant described as being ad colligenda bona may nonetheless be crafted to include powers to commence, defend and conduct proceedings, if that is what is required. Further, as Wyckoff82 and Gudolle83 show, circumstances of urgency might be provided by something other than a demonstrably wasting asset. 134 It may be accepted that there is an archetype of a grant ad colligenda bona, being where a wasting or precarious asset is identified and a general grant cannot or will not immediately be obtained. That archetype does not limit the Court’s powers. The Court will make a limited grant in terms required to protect the estate. As Mataska shows, circumstances of urgency may be established on account of a dearth of information about the correctness of dealings with the estate and the perception, for want of information, that assets removed from the estate may be at risk. Whether that can properly be described as a grant ad colligenda bona would seem in such a case to be a matter, largely arid, of historical description rather than jurisdiction. The real question is whether, and in what terms, a limited grant should be made. 135 In a contested case, of course, it is necessary to ensure that notice is given of the extent of the limited grant applied for. What that means in practice will depend, to some degree, on the circumstances of urgency attending on the application. 80 (2006) 95 SASR 536. 81 [1998] SASC 6549. 82 In the Goods of Peter Richmond Wyckoff (1862) 3 Sw & Tr 20; 164 ER 1178. 83 In the Goods of Don Miguel Gudolle (1835) 3 Sw & Tr 22. -- 35 of 58 -- [2026] SASCA 2 Bleby JA 32 136 With this background of analysis of the jurisdiction to make limited grants and the forms such grants may take, I turn to the grounds of appeal in this case. The grounds of appeal 137 The grounds of appeal read as follows: 1. The learned judge pronounced orders as if the Respondent were proceeding for the final relief in the Originating Application to pass over the Executor. (a) the only claim actually pursued was for relief in the form of the appointment of an administrator ad colligenda bona; (b) as the learned judge appeared to recognise (at TJ [65]-[66]), such an application required an imminent threat to the Estate calling for urgent judicial intervention whereas the only basis of urgency contended for by the Respondent was an appointment to facilitate the commencement of Inheritance (Family Provision) Act proceedings prior to the repeal of that Act effective 1 January 2025; (c) the Respondent had an outstanding application for discovery of documents which had not been pressed; (d) the Appellant was only required to meet a case of some imminent threat to the assets of the Estate calling for their protection and preservation as to which the Respondent carried the onus, and none was proved. 2. The learned judge proceeded by considering matters relevant to an ultimate appointment passing over the Executor when that was not the application the Appellant was called upon to answer. 3. The judge proceeded to make orders only first sought by the Respondent by way of draft minutes of order handed up at the commencement of the hearing on 10 December 2024. 4. The authorities relied upon by the learned judge (at TJ [38]-[44]) are all distinguishable and either relate to different forms of grant or to appointments ad colligenda bona in circumstances of urgent need to protect and preserve estate assets. 5. The learned judge erred in ordering the appointment of an administrator ad colligenda bona in circumstances where the Respondent had not demonstrated any imminent risk to the assets of the Estate. 6. The learned judge erred in finding that it was appropriate to appoint an administrator ad colligenda bona (in terms of the minutes of order produced by the respondent at the hearing of the application) for what the learned judge found to be the secondary purpose of: (a) undertaking investigations as “may identify an urgent need to protect the Estate and the assets” (at TJ [66]); and/or (b) “rectify[ing] the position with respect to the deceased’s estate” (at TJ [69]). 7. The learned judge erred in finding that the Respondent’s predominant purpose in seeking the appointment, which the learned judge found was to facilitate a claim by -- 36 of 58 -- [2026] SASCA 2 Bleby JA 33 him pursuant to the [IFP Act] prior to the commencement of the Succession Act 2023 (SA), was a proper justification or basis for the appointment (at TJ [22]). 8. The learned judge erred in accepting that the Respondent had standing to apply for the orders made in circumstances where the Respondent failed to demonstrate any credible or reasonable basis for an entitlement to provision out of the Estate pursuant to the IFP Act and where otherwise the Respondent was entitled at most to a potential legacy (the efficacy and value of which justified, at most, a limited investigation into the existence or otherwise of the Gem Holdings M3 account referred to in the will). 9. The learned judge erred in holding that: (a) disentitling conduct for the purposes of the Inheritance (Family Provision) Act must be conduct directed towards the testator (at TJ [53]); (b) evidence of disentitling conduct on the part of the Respondent was not relevant to and did not provide a basis upon which the Court might refuse the application for the appointment of an administrator ad colligenda bona (at TJ [55]); (c) it was premature for any consideration to be given to the conduct of the Respondent and/or that there was no evidence before the Court as to permit it to take account of such matters (at TJ [56]). 10. The learned judge was wrong to hold, if he did so hold, that the Appellant had not adduced relevant evidence of disentitling conduct and the learned judge should have taken such conduct into account in circumstances where the very occasion for the urgent need for the appointment of an administrator ad colligenda bona advanced by the Respondent was to facilitate a claim for further provision out of the Estate under that legislation. 11. In finding as he did (at TJ [47]) that the Executor had failed to comply with a fundamental duty, the learned judge failed to have sufficient regard to the fact that: (a) the Respondent’s standing, if any, as a potential claimant under the IFP Act did not give rise of duties in the Executor to the Respondent of the kind or in the manner described; (b) the purported bequest out of the will to the Respondent only gave rise to a very limited basis in standing and did not require the Executor, and certainly not at the stage which the proceedings had reached, to provide a full accounting to the Respondent of the administration of the Estate; (c) any assumption of standing based upon the purported bequest assumed the very existence of a valid, enduring and operative bequest which was one of the very issues to be determined on a substantive hearing; (d) the Respondent pitched his claim to standing to pursue an urgent application based upon a potential claim under the IFP Act. 12. The learned judge erred in holding that the Appellant had acted in breach of his duties and obligations as executor, in allegedly failing to provide documents and information to the Respondent upon request regarding the administration of the Estate, in circumstances where: -- 37 of 58 -- [2026] SASCA 2 Bleby JA 34 (a) the previous requests made by the Respondent were broadly made and largely unconnected to the subject matter and the stated purpose of the extant application (for the appointment of an administrator ad colligenda bona); and (b) the Respondent had filed an interlocutory application for discovery and production of documents (FDN3) which had not been pressed at the time that the order for the appointment of an administrator ad colligenda bona was made. 13. The learned judge erred in making the orders in circumstances where the Respondent, by his counsel, had disavowed an intention to prosecute at the hearing a claim to pass over the Appellant as executor (as per paragraph 2 of the Originating Application) and the Appellant was only called upon at the hearing to answer an application for an appointment ad colligenda bona strictly so-called. 14. The ultimate justification and basis given by the learned judge for the appointment (at [66]) went to the ultimate application for passing over and not to the application for urgent relief to protect and preserve the Estate. Grounds of Appeal 1, 2, 3, 12, 13, 14 138 The appellant’s essential complaint under these grounds, as he describes it, is that the primary judge erred in making the orders sought by the respondent by reference to matters relevant only to and in terms of an order for passing over. 139 The Court will exercise its jurisdiction to pass over an executor in special circumstances. To pass over an executor is to appoint a person as administrator in the stead of a named executor. So termed, it is to make a general grant of administration. In In Estate of Crane,84 which was a passing over case, Besanko J collected the English authorities indicating when the jurisdiction to pass over will be exercised:85 There are a large number of English cases where the Court of Probate has passed over an executor or revoked a grant of probate. That has been done on various grounds of which the following are examples: 1 The executor was of bad character, had been convicted of manslaughter in relation to the death of the testator and was in prison: In the Estate of S [1968] P 302. 2 The executor had neglected his duties: In the Estate of Potticary [1927] P 202. 3 The executor had intermeddled in the estate and refused to take a grant: In the Estate of Biggs [1966] P 118. 4 The executor was absent abroad: In Goods of Taylor [1892] P 90. 5 The executor was suffering from ill-health: Re Galbraith (dec’d) [1951] P 422. 6 The executor was of unsound mind: In Goods of Atherton [1892] P 104. 84 (2005) 93 SASR 198. 85 In Estate of Crane (2005) 93 SASR 198 at [25]. -- 38 of 58 -- [2026] SASCA 2 Bleby JA 35 7 The executor was not competent to take probate: In Goods of Stewart (1872–75) LR 3 PD 244. 8 The executor had disappeared: Re Sawtell (1862) 2 Sw & Tr 448. 9 The estate was insolvent: Ex parte Leguia; In the estate of Ashworth [1934] P 80. 140 In Crane itself, the deceased had owned shops and a caravan. He appointed his two sons as his executors. After the deceased’s death, one of the sons asserted that the deceased had transferred the shops and the caravan to him, six days earlier, for $100 each. The other son asserted that both transactions were void as the deceased lacked capacity and they were the result of undue influence or unconscionable conduct by the first son. There was also a dispute about an alleged debt that the first son owed to the estate. 141 Justice Besanko held that the circumstances surrounding the assets and their disposition required careful investigation.86 He explained his decision to make an order passing over the first son as executor:87 In considering whether this is an appropriate case to exercise the jurisdiction to pass over Kevin, I must have regard to the due and proper administration of the estate and the interests of the parties beneficially entitled to the estate. That is the guiding principle. I must also recognise that the jurisdiction is limited and that, in general, Kevin, as a person who is named as executor by the testator, is entitled to a grant of probate. I also recognise that, in the ordinary case, a potential conflict of interest will not be sufficient to justify the exercise of the jurisdiction. As Windeyer J observed in Uniting Church in Australia Property Trust (NSW) v Millane, not infrequently an executor will have some conflict, such as being a debtor to the estate. However, in my opinion, this is a different case (from that of an executor who has some conflict by reason of being a debtor to the estate). Kevin has made it clear that he maintains that the transactions involving the Mount Barker shops and the caravan are legally effective and that he owes no money to the estate. There is every reason to think that he will continue to maintain that position until a Court determines otherwise. If made an executor, I think that it can be said with a high level of confidence that he will not consent to the estate asserting rights in relation to the three assets. In that event, an application to the court for the estate to bring or defend proceedings would be almost inevitable. I emphasise that at this stage I am not determining the merits of the claims, but at the same time I have reached the conclusion that, on the face of it, the claims require careful investigation, and, as near as one can tell at this stage, litigation in relation to one or more claims is likely. In the particular circumstances of this case, I think the order sought should be made. 142 In the present case, the respondent has also sought an order passing over the appellant as executor. That application is yet to be heard and determined. 143 Having regard to the analysis of the jurisdiction to make limited grants, above, there is an immediate difficulty with the appellant’s global contention encompassed by these grounds. Where there is cause to think that circumstances 86 In Estate of Crane (2005) 93 SASR 198 at [31]. 87 In Estate of Crane (2005) 93 SASR 198 at [40]-[41]. -- 39 of 58 -- [2026] SASCA 2 Bleby JA 36 of dealing with the assets of the estate require investigation, it may be appropriate to make an order passing over an executor. On the other hand, there may be circumstances (such as urgency) rendering it appropriate to make a more limited grant. In Estate of Crane provides an example of the former; Mataska provides an example of the latter. The underlying theme of the applicant’s submissions, that each different form of grant confines the powers of the Court, is not correct. While Besanko J made a passing over order in Crane, largely on account of the need for an investigation, in Mataska the need for an investigation prompted a much more limited grant that fell short of passing over. 144 This is a broad observation that does not exhaust the appellant’s complaints under these grounds of appeal. The appellant has raised a number of particular complaints that challenge the limits of the Court’s powers on an application such as this. 145 A fundamental assertion by the appellant is that the orders did not fall within the ‘four corners’ of paragraph 1 of the application, as they were not orders ad colligenda bona. When asked, in the course of argument, whether it mattered if the orders went beyond what might be regarded traditionally as a grant ad colligenda bona, senior counsel for the appellant answered: It's not so much a label, it’s a matter of legal rigour, and it’s a matter of confronting a case when you come to court. I mean I take your Honour’s point that if there’s some sort of broad power at large to do anything you like, then maybe you can justify any order you like. But that’s not the jurisdiction. The jurisdiction has an underlying basis, but then there are well accepted grants in explication of that jurisdiction, and we came to court to meet a claim for one of those grants which has particular rules and requirements, and if they are not met we say we don’t have to answer to that. We say that ultimately we may have had to answer to a passing over, that maybe we did let the estate down. We don’t concede that, but that could be put against us. And if we did let the estate down there could be a passing over. But we can only confront the case that was put against us, and on the authorities as to what it means… 146 Senior counsel went on to distinguish Mataska as an ad litem claim. However, for the reasons appearing earlier, Mataska was an application for an undescribed form of limited grant. It had a potential ad litem aspect, as did Rowell. The primary object of the grant, however, was to enable an investigation. 147 To say that the application, being described as for a grant ad colligenda bona, was thereby confined to a case that met the archetype of such a grant, misconceives the nature of the jurisdiction. The use of the term does not confine the case that the appellant had to answer. The appellant had to answer the case that was made against him, specifically, the orders that were sought. Contrary to the appellant’s submission, the description of the application as being for a grant ad colligenda bona did not confine the exercise of the jurisdiction to a grant that only met the archetype. -- 40 of 58 -- [2026] SASCA 2 Bleby JA 37 Ground 2 148 For these reasons, I would dismiss Ground 2. The fact that the respondent asserted matters that were relevant to an order for passing over did not mean that those matters were not also relevant to the application for the limited grant that the respondent sought. The respondent’s description of the order sought as being for a grant ad colligenda bona did not alter that. Ground 1 149 Ground 1 complains that the judge pronounced orders as if the respondent were proceeding for final relief to pass over. For the reasons explained above, this complaint is misconceived. That is sufficient to dismiss particular 1(a). 150 The essential finding that moved the judge to make the orders was as follows:88 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. 151 As to this, the appellant complains in particular (c) of Ground 1 that the respondent had made a wide-ranging application for discovery, which he had not prosecuted on this application. That can be dealt with shortly: an executor’s obligation to provide information is not contingent on a named beneficiary bringing a successful application for discovery. The finding that the appellant had failed to comply with one of his fundamental duties, by refusing to provide information to which the respondent was entitled, was available and highly relevant to the application. 152 The broader complaint under this ground, appearing in particulars 1(b) and (d), is that the respondent did not demonstrate that there was any urgency such as would constitute an imminent threat to the estate calling for its protection and preservation. This complaint must be assessed against the judge’s finding, in the first instance, that the affidavit evidence of Mr Griffin did not establish key matters on which Mr Griffin purported to give evidence. Critically, that extended to the asserted loan and insolvency of the deceased’s estate. As the judge said:89 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 88 [2025] SASC 86 at [47]. 89 [2025] SASC 86 at [66]. -- 41 of 58 -- [2026] SASCA 2 Bleby JA 38 that the executor has not descended into giving evidence but rather has relied upon affidavits of his solicitor. (Emphasis added.) 153 The appellant submitted that this finding was not one of actual urgency. That was insufficient, in his submission, to justify a grant ad colligenda bona. I reject that submission. Again, bearing in mind that however they may be described, the recognised categories of limited grant are not confined as the appellant would have them, uncertainty and risk are capable of providing a basis for urgent relief in the form of a limited grant. 154 The appellant asserted (in particular 1(b)) that the only basis of urgency contended for by the respondent was an appointment to facilitate the commencement of IFP Act proceedings prior to the repeal of that Act effective 1 January 2025. 155 The respondent was open about this motivation and indeed, it was this asserted urgency that was the subject of the respondent’s supporting affidavit. Senior counsel before the primary judge did not shy away from the perceived urgency arising on account of the imminent legislative change. However, in argument at the hearing of the application, he identified a further basis of urgency arising from an affidavit of the appellant’s solicitor, Mr Griffin, filed in opposition to the application: … but the relevant urgency or need for protection are the facts. They’ve only come to light recently from Mr Griffin’s affidavit, by which it is now admitted that the executor has transferred the assets into shares to a third party, and done things to make sure that each of companies in the group no longer record Mrs Florence as the holder of those assets, but now record Nominated Manager of the assets, asset holder. Now, one doesn’t know at all what Nominated Manager might or might not do with those assets, but the Nominated Manager Limited is not the same entity as Mr George Polites acting as executor of the estate of the deceased. And so being out of the hands of the executor and in the hands of the third party entity means that there is an urgency, there is a need for the protection of those assets, and there is a need on an urgent basis for an investigation by the administrator to see what were the assets of the deceased at her death, what is the value of those assets? Can it truly be said that the debts, if there are any, exceed the value of the assets? We don’t know at all what process has been gone through, if any, to value the assets at the date of death of the deceased, that material has simply been withheld. 156 This passage is sufficient to demonstrate that the premise of particular 1(b), that the respondent’s only asserted basis of urgency was the IFP claim, is incorrect. It was a late addition to the respondent’s justification for the application, but that can readily be seen as being on account of the late revelation by the appellant of his disposition of assets in the estate. 157 The judge explained the relationship between the two asserted reasons for urgency: -- 42 of 58 -- [2026] SASCA 2 Bleby JA 39 I am satisfied the [respondent] sought a grant of letters of administration ad colligenda bona not only to enable the bringing of the 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. 158 The appellant had failed to provide any evidence, other than the unsupported assertions of Mr Griffin, supporting the existence of the asserted loans and the claim of insolvency of the estate. For the reasons discussed earlier, I am satisfied that these failures supported the judge’s finding that the respondent had a reasonable concern that the appellant may have breached his duties as executor by parting with the assets of the estate. It also supported the findings that this required investigation and that the investigation may identify an urgent need to protect the estate and its assets. That finding was, for the reasons discussed earlier, sufficient to support an urgent limited grant of administration. 159 I make some further observations. First, as already observed, any claim after 1 January 2025 by the respondent as a grandchild of the deceased under the Succession Act, rather than under the IFP Act, would have significantly diminished prospects, if any. The affidavit of the respondent asserts, in all likelihood correctly, that the prospect of any claim would be lost. 160 Insofar as the urgency of the application was linked to the repeal of the IFP Act there may be, however, a further issue. The primary judge explained that:90 … in order to bring a claim under the IFP Act the [respondent] 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. 161 Section 8(6) of the IFP Act provided: (6) An application for the benefit of this Act shall be deemed to be made on the day when the summons by which it is instituted is served on the administrator of the estate. 162 This sub-section is a deeming provision that appears in the immediate context of s 8(1), which requires an application to be made within six months from the date of grant of probate or letters of administration. It is not clear to me, however, that it has the apprehended effect of causing any IFP Act claim to be lost in the absence of service on an administrator prior to 1 January 2025. Clause 2 of Schedule 4 to the Succession Act provides: 90 [2025] SASC 86 at [20]. -- 43 of 58 -- [2026] SASCA 2 Bleby JA 40 2—Continuation of proceedings under repealed Acts Any proceedings commenced in the Court under a repealed Act that have not been finally determined before the designated day may be continued and completed under that Act as if this Act had not been enacted. (Emphasis added.) 163 There is a question, to my mind, of whether s 8(6) had the effect of deeming an IFP claim to have been ‘commenced in the Court’ within the meaning of this transitional clause only when it is served on an administrator. Section 8(6) appears to be a deeming provision for the purpose of the time limit imposed by s 8(1). It would be surprising if it were a bar to commencing a claim at all. 164 This was not the subject of argument, and I do not decide it. On any view, it was necessary for the respondent to have ‘commenced in the Court’ his IFP claim before 1 January 2025. For present purposes, I simply record that I am not necessarily persuaded that the respondent was required to serve it on an administrator before that date. 165 If, contrary to this doubt, it was necessary to serve the application on an administrator before 1 January 2025, there may be a further issue. I have discussed earlier that any limited grant of administration is strictly limited to its terms (and any necessary implications contained within the grant). Thus, in In the Estate of Rowell,91 while the grant was described as being ad colligenda bona, it included powers to commence and conduct proceedings. In the present case, by contrast, no term of the grant of 10 December 2024 authorised the administrator, Ms Hooper, to accept service of any proceedings, including an IFP Act claim. 166 Section 8(6) of the IFP Act refers to ‘the administrator of the estate’ (emphasis added). Without deciding, it seems to me that it is likely that this phrase, of necessity, may only refer to an administrator who is empowered to accept service. I think it unlikely that it would extend the powers of an administrator with a limited grant, not otherwise empowered, to take any step in proceedings. 167 The matter is then complicated, however, by orders that the judge then made on 20 December 2024, on the appellant’s application for a stay. Order 1 reads: 1. Subject to Ms Sarah Hooper obtaining any grant of letters of administration ad colligenda bona in respect of the estate of the testator Florence Gemenis Polites (Estate), the orders made by the Honourable Justice Stanley on 10 December 2024 be stayed on an interim basis and until further order, save and except that Ms Hooper be entitled upon obtaining a grant as aforesaid to accept service of any proceedings instituted by the [respondent] under the [IFP Act] for further provision out of the Estate. 168 On its face, this subsequent order appears to extend the scope of the grant, possibly on the mistaken assumption that the original orders empowered 91 (2006) 95 SASR 536. -- 44 of 58 -- [2026] SASCA 2 Bleby JA 41 Ms Hooper to accept service. In any event, there appears to be an order in place from 20 December 2024, at least, empowering acceptance of service of the respondent’s IFP Act claim. 169 These matters are beyond the scope of this appeal; I merely note that there are more issues concerning this claim and its timing than may have been appreciated at first instance. It may be that the question of the urgency of a limited grant, on the basis of the need to protect the IFP claim, was not as clear cut as appears to have been assumed. However, for the reasons discussed above, this was not the only basis of urgency on which the respondent ultimately pressed the application and the judge acted. For the reasons given earlier, I am satisfied that the perceived urgency arising out of the appellant’s failure to comply with his duties provided a sufficient basis for the limited grant. It is not necessary to decide whether the perceived urgency of the IFP Act claim was capable of supporting the grant. 170 For these reasons, I would dismiss Ground 1. Ground 3 171 Ground 3 complains that the orders sought and made were only first notified by the respondent handing up draft minutes of order at the commencement of the hearing. This complaint is bound up with the appellant’s thesis as to the strict limits on an application for a grant ad colligenda bona. The appellant submitted that in addition to the respondent not seeking an appointment ad litem, the form of the orders sought on the day of the hearing strayed outside the application being propounded. 172 My earlier discussion of the history of the forms of limited grant shows that it is artificial to suggest that orders on any application described as being of a grant ad colligenda bona must necessarily be limited to the archetype as I have characterised it. As the respondent submitted, the form of an order the Court will make will depend on the reasons justifying the appointment. The question is what an administrator should be empowered to do in the interests of the due administration of the estate. 173 The application was listed urgently, on account of the imminence of 1 January 2025. In any event, the complaint is not that the appellant was embarrassed, but rather that this relief was not available on the application as framed. For the reasons given earlier, I reject that. I would dismiss Ground 3. Ground 12 174 Ground 12 complains of the finding that the appellant had acted in breach of his duties and obligations by failing to provide documents and information, in circumstances where the previous requests ‘were broadly made and largely unconnected to the subject matter and the stated purpose of the extant application -- 45 of 58 -- [2026] SASCA 2 Bleby JA 42 for the appointment of an administrator ad colligenda bona’ and where there was an extant application for discovery. 175 To be clear, this does not appear to be a challenge to the finding that the appellant had failed to provide the documents and information, and that this failure was in breach of his duties. The appellant did not prosecute any complaint on appeal to such effect. Rather, the ground attacks the relevance of the findings to the application as framed. 176 For the reasons given in relation to particular 1(c), the existence of the application for discovery does not affect the integrity of the findings of the appellant’s failure and breach of his duties. Neither does it affect the relevance of those findings to the judge’s assessment of the urgency of an administrator being appointed on a limited basis with investigative powers. The balance of the complaint is again premised on the proposition that an application for a grant ad colligenda bona is necessarily limited to the archetype. Again, I reject that premise. 177 I would dismiss Ground 12. Ground 13 178 This ground repeats the complaint that the appellant was only called upon at the hearing to answer an application for an appointment ad colligenda bona ‘strictly so-called’, and not a claim for passing over. The respondent was clear at the hearing that he was not, at that stage, prosecuting the application to pass over the appellant as executor. For the reasons given earlier, the matters the respondent relied on properly supported the limited grant that he sought at the hearing. The description of the grant sought as being ad colligenda bona did not undermine that. 179 I would dismiss Ground 13. Ground 14 180 This ground complains again, in a different form, that the justification relied on by the judge for making the grant was relevant only to the ultimate application for passing over, and not to any need to protect the estate. I set out the judge’s justification again here for convenience:92 The basis of the [respondent’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 92 [2025] SASC 86 at [66]. -- 46 of 58 -- [2026] SASCA 2 Bleby JA 43 executorial duty by parting with the assets of the deceased’s estate. In my view that requires investigation. 181 For the reasons already given, this concern was capable of supporting the conclusion that there was an urgent need to protect the estate as well as an ultimate claim for passing over the appellant as executor. This complaint is without merit. 182 I would dismiss Ground 14. Grounds of appeal 4, 5 and 6 183 The appellant’s essential contention encapsulated by these grounds is that the judge ‘erred in ordering the appointment of an administrator ad colligenda bona in circumstances where the threshold requirements for such an appointment had not been met’. 184 It is not necessary to address these grounds individually. They are set about above. At their heart is the contention by the appellant that the ‘condition for the exercise of the power within that jurisdiction was not made out’. The appellant explained this contention by submitting that ‘there was nothing in the evidence to support a conclusion that assets in the estate were at imminent risk or could not be held in status quo, if deemed necessary, by an undertaking of the executor…’. The appellant had proffered an undertaking in support of his application for a stay and submitted that the shares had been disposed of ‘to a Group-related trust’ in accordance with clause 7 of the will. 185 The respondent disputed that the appellant had disposed of the shares in accordance with the will. Clause 7 of the will provides: 7. I GIVE to the trustees of the Constantine George Polites Master Trust all my shares in limited companies to be held upon the trusts set forth in the Constantine George Polites Master Trust Deed bearing date the 10th day of March 1999; 186 The evidence does not identify the trustees of the Constantine George Polites Master Trust. The appellant disposed of the shares to an entity called Nominated Manager Ltd. Mr Griffin’s first affidavit of 18 October 2024 asserted that at the time of her death, the deceased was indebted to Nominated Manager Ltd as trustee of the Ambassadors Trust for her years of living, care and medical expenses as described earlier, such that the estate was insolvent. Mr Griffin in the third Griffin affidavit said that the Statement of Assets and Liabilities exhibited to the first Griffin affidavit listed the incorrect ABN for the Ambassador’s Trust. 187 The respondent pointed to Mr Griffin’s own confusion as indicating the need for an investigation. More fundamentally, however, the appellant has asserted before the Court that the shares were disposed of in accordance with clause 7 of the will. The Statement of Assets and Liabilities asserted by Mr Griffin appears to suggest that the shares have necessarily been called to meet a debt to quite a different entity. The existence of that debt in the first place is only the subject of Mr Griffin’s assertions. -- 47 of 58 -- [2026] SASCA 2 Bleby JA 44 188 What has occurred is within the knowledge of the appellant, who has failed to provide any acceptable foundation for the assertions of a loan and insolvency (and, for that matter, the seemingly conflicting assertion of distribution in accordance with the will). In those circumstances, there was ample basis to justify the appointment of an administrator with powers of investigation. Again, insofar as the appellant here relies on his thesis that the power of the Court was limited to a grant that met the four walls of the archetype of a grant ad colligenda bona, as I have described it, and that the conditions of such a grant were not established, I reject the submission. 189 I would dismiss Grounds 4, 5 and 6. Grounds of Appeal 7, 8, 9, 10, 11: Standing 190 The appellant’s ‘essential complaint’ encapsulated by these grounds is that the judge erred in finding that the respondent had appropriate standing to seek orders in the terms that were made. The primary judge approached the issue of standing by reference to the nature of the jurisdiction being exercised:93 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.94 This approach has been taken in applications for limited grants of administration to permit the administrator to consider matters which warrant “careful investigation”.95 The Court’s jurisdiction was recently considered in Re Estate of Ahmed Abou-Khalid96 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. 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.97 (Citations in original; emphasis added.) 191 The judge relied in this regard on Mataska.98 It is to be recalled that in that case, the testator had sold her real property prior to her death and purchased another property jointly with the defendant executrix. Title to that property passed to the executrix on the death of the testator by survivorship. The testator’s other daughter 93 [2025] SASC 86 at [36]–[37]. 94 In the Goods of Loveday [1900] P. 154 at 156. 95 Mataska v Browne [2013] VSC 62 at [30], [33] and [55]. 96 [2024] NSWSC 253 at [185]; (2023) 114 NSWLR 166 at 203–204. 97 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]. 98 Mataska v Browne [2013] VSC 62. -- 48 of 58 -- [2026] SASCA 2 Bleby JA 45 was left without provision. Justice McMillan in the Supreme Court of Victoria held that while the daughter did not have a present or actual existing interest in the estate, she had reasonable prospects of success in her claim for family provision. That was sufficient to establish a prima facie interest in the estate and the administration of the estate. 192 As noted earlier, McMillan J reviewed the case law as to whether a possible claim under family provision legislation provided a sufficient interest to establish standing to apply for a limited grant.99 The main authorities her Honour reviewed were: • Wood v McLean,100 in which a single judge (Sifris J) had held that two plaintiffs seeking provision under Part IV of the Administration and Probate Act 1958 (Vic) did not have standing to bring an action to set aside an inter vivos transfer by the deceased to their sister. The Court of Appeal granted leave to appeal but the matter settled before the appeal was heard; • Van Wyk v Albon,101 an application for revocation of a grant of probate, where Habersberger J applied Wood v McLean; • Re Culina; Poulos v Pellicer,102 where Windeyer J held that a possible claim under the Family Provision Act 1982 (NSW) was an insufficient interest for the estranged wife of the son of the deceased to entitle her to defend proceedings for a grant of letters of administration. Windeyer J referred to Arbuz v Sanderson,103 in which Waddell J held that the former wife of a deceased who proposed to make a claim against the estate under the Family Provision Act 1982 (NSW) did not have an interest such as to support a caveat; • Hogarth v Johnson,104 where the Full Court of the Supreme Court of Queensland held that the applicant, who claimed further and better provision from the deceased’s estate as an illegitimate son for whom no provision had been made, had standing to bring an action against the executrix of the estate. The son claimed that the two wills of the deceased were invalid and that the deceased died intestate. The Court held that he had a right to determination of whether real property the subject of inter vivos transfers to the defendant formed part of the estate and who should administer the estate. The extent of his interest depended on who might share in the estate. 99 Wood v McLean (2010) 31 VR 12; Wood v McLean [2011] VSCA 37; Van Wyk v Albon [2011] VSC 120; Re Culina; Poulos v Pellicer [2004] NSWSC 504; Arbuz v Sanderson, Unreported, Supreme Court of New South Wales, 24 March 1986, (Waddell J); Hogarth v Johnson [1987] 2 Qd R 383. 100 (2010) 31 VR 12; [2011] VSCA 37. 101 [2011] VSC 120. 102 [2004] NSWSC 504. 103 Unreported, Supreme Court of New South Wales, 24 March 1986, (Waddell J). 104 [1987] 2 Qd R 383. -- 49 of 58 -- [2026] SASCA 2 Bleby JA 46 193 Justice McMillan framed the question as whether, in the circumstances, the contingent interest that the plaintiff had under the family provision legislation gave her standing to seek a limited grant and pass over the executor.105 She considered that where a plaintiff satisfied a court that there is an obligation for family provision not met by the testator, the order for provision operates as if it were a codicil to the will. In effect, the applicant becomes a beneficiary of the estate as at the death of the testator.106 Nevertheless:107 Plainly, it is not the case that anyone who contemplates a Part IV claim has an interest sufficient to interfere in the administration of an estate. However, in the present circumstances, there are strong grounds upon which to conclude that the plaintiff has a prima facie case for further provision from the estate.51 In a claim made by an adult daughter for whom no provision has been made, in my view, there is a prima facie presumption that a deceased did have a responsibility to make provision for her. Such an applicant, without more, has a prima facie interest in the estate of a deceased. (Citation omitted.) 194 In this regard, her Honour followed the reasoning of the Full Court of the Supreme Court of Queensland in Hogarth v Johnson.108 She held that the fact that her claim for family provision (as a daughter of the testator) had reasonable prospects of success suggested that she had a prima facie interest in the estate and, in that sense, a sufficient interest in the administration of the estate. She held that while a contingent interest under family provision legislation was, without more, insufficient to support standing, in certain cases a reasonable prospect of success in such a claim would suffice.109 195 The appellant sought to distinguish Mataska before the primary judge on the basis that the grant sought in Mataska was a grant to investigate, rather than for the purposes of commencing proceedings, and contended that the respondent did not have a sufficient interest to support standing. He submitted that the respondent had not shown he had any call on the deceased’s bounty after her death. The respondent had received support from resources accumulated by the deceased’s husband and the executor over the years. The appellant further submitted that the respondent had engaged in disentitling conduct. 196 The primary judge did not accept those submissions, holding them to be premature. He said:110 Those submissions are premature. Prima facie, at this stage no proper basis has been established that would preclude the [respondent] from pursuing his IFP claim. The evidence set out in Mr Griffin’s affidavits as to the conduct of the [respondent] 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 [respondent] can make out a proper basis for relief under the IFP Act. 105 Mataska v Browne [2013] VSC 62 at [49]. 106 Mataska v Browne [2013] VSC 62 at [50]. 107 Mataska v Browne [2013] VSC 62 at [51]. 108 [1987] 2 Qd R 383. See Mataska v Browne [2013] VSC 62 at [52]. 109 Mataska v Browne [2013] VSC 62 at [53]. 110 [2025] SASC 86 at [41]. -- 50 of 58 -- [2026] SASCA 2 Bleby JA 47 Further, whether any IFP claim should be denied on the basis of disentitling conduct is a matter for trial. In any event, the [respondent] 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. 197 At the appeal, the appellant submitted that even applying the test articulated by McMillan J in Mataska, the respondent had poor prospects on an IFP Act claim. 198 The respondent, it is to be recalled, was a grandchild of the deceased. The respondent submitted that the emphasis in Mataska on the strength of the claim for family provision should be read in light of the terms of s 91 of the Administration and Probate Act 1958 (Vic). At the time of Mataska, s 91(1) of that Act provided: 91 Power of the Court to make maintenance order (1) Despite anything in this Act to the contrary, the Court may order that provision be made out of the estate of a deceased person for the proper maintenance and support of a person for whom the deceased had responsibility to make provision. 199 The Court was then required to have regard to a host of matters set out in s 91(4) when deciding whether the deceased had responsibility to make provision for a person, including any familial relationship. By contrast, s 6(h) of the IFP Act provided that ‘a child of the child’ of the deceased person’ was entitled to claim the benefit of the Act. 200 The effect of the difference, the respondent submitted, was that under the South Australian IFP Act, a grandchild had standing to make an IFP claim. He submitted that in Victoria, by contrast, no person necessarily had standing to make a claim. 201 I am not persuaded that this difference is quite as stark as the respondent submitted. Any person with standing under the IFP Act is still required to satisfy the Court, pursuant to s 7(1)(b), that they have been ‘left without adequate provision for his proper maintenance, education or advancement in life’. Justice McMillan’s emphasis in Mataska was on the strength of the claim, not standing to make a claim. Viewed as a matter of standing, on one view, any person appears to have had standing to make a claim under the Victorian legislation as it then stood (it has now substantially changed). The success of the claim would then depend on a raft of considerations, including the familial relationship and the character of the applicant. 202 Having said that, the statutorily conferred standing on grandchildren in the IFP Act still does have the effect of strengthening the appellant’s claim, in that the relationship is not merely a discretionary matter to be considered. 203 In Mataska, the fact that the applicant was an adult daughter for whom no provision had been made gave rise to a prima facie presumption that the deceased -- 51 of 58 -- [2026] SASCA 2 Bleby JA 48 had a responsibility to make provision for her.111 The Court did not look beyond that. In this case, the respondent is a grandchild of the deceased. While this confers standing, it says less about the strength of the claim than would that of a child of the deceased. However, on the respondent’s evidence, the respondent was cared for by his grandparents for much of his childhood. He cared for the deceased for a time. He has had considerable difficulties as an adult, including very poor health. On the other hand, it would appear that he has also already received considerable benefits from the deceased and the Polites Group. 204 The appellant focused heavily on what he claimed was disentitling conduct on the part of the respondent. Mr Griffin’s affidavit of 25 November 2024 set out allegations of abuse and harassment by the respondent towards the appellant, as well as the respondent’s history of criminal offending referred to in that affidavit. 205 What is referred to in short form as ‘disentitling conduct’ can found a basis for the refusal of an application for provision under the IFP Act. Section 7(3) of that Act provided: (3) 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. 206 The judge found that the allegations of disentitling conduct were yet to be tested. However, as the appellant submitted, certain allegations were found to be sufficiently credible to ground an interim intervention order against the respondent for the protection of the appellant in 2014. That order was confirmed on 8 September 2015. Mr Griffin exhibited to his affidavit the reasons of the magistrate in confirming the order in 2015. The magistrate expressed herself to be:112 … satisfied on the balance of probabilities that from 16 June 2013 to 26 December 2014, Mr Salkanovic committed a large number of acts of abuse against Mr Polites as defined in Section 8 of the Act … These acts were committed in person outside Mr Polites’ home, verbally over the telephone and by sending of SMS text messages to Mr Polites … 207 I accept that the evidence on which the appellant relied as establishing disentitling conduct extended beyond Mr Griffin’s assertion. This included the respondent’s admission in his affidavit in support of the application that, in 2015, he had been found guilty of attempting to import a tier 1 good (pseudoephedrine) into Australia. However, I am not persuaded that this has the necessary effect on standing in the present matter for which the appellant contended. 208 Disentitling conduct, so described, provides a foundation for the Court to refuse the application in the exercise of its discretion. It may be accepted for the sake of argument, that on a prima facie assessment, the evidence of disentitling 111 Mataska v Browne [2013] VSC 62 at [51]. 112 Politis v Salkanovic, Judgment of Magistrate LC Duncan, 8 September 2015, [122]. -- 52 of 58 -- [2026] SASCA 2 Bleby JA 49 conduct may be relevant to the exercise of the discretion in determining an IFP Act claim. 209 It is much more difficult to bring to account disentitling conduct in determining whether the respondent has a sufficient interest to make a claim for a limited grant of administration. It is one thing to point out that aspects of such conduct have been proved in other courts for the purpose of obtaining protective orders or even in the criminal justice context. It is quite another to prognosticate how that conduct will be treated when subject to a trial on the question of whether or not, in all the circumstances, including its effect on the deceased,113 it should be treated as disentitling conduct. 210 It is not possible to predict how all the matters identified above will end up being assessed at trial. In my view, however, it was open to conclude that the respondent’s potential claim under the IFP Act was sufficient to ground an interest in the due administration of the estate such as to generate standing to bring the present application. 211 In any event, however, and having regard to my earlier observations about the foundations for the IFP Act claim, it remains the case that the respondent is a named beneficiary in the will. Mr Griffin asserted in his affidavit of 25 November 2024 that an account in the name of Gem Holdings Pty Ltd, which he asserted was the account the subject of this bequest, was exhausted in 2002 and closed thereafter. That does not provide a satisfactory evidential basis from which to conclude that the gift has been adeemed. Mr Griffin did not explain the basis of the transfer of funds out of the account, other than that it was for ‘for cashflow purposes’, the accounting treatment of the transfers or the authority by which it was transferred. As I noted earlier, the respondent’s evidence is that by 2001, the deceased had been diagnosed with dementia. That evidence appears in one of the paragraphs that is said in the second Griffin affidavit to be disputed. 212 In Official Receiver in Bankruptcy v Schultz,114 relied on by the respondent and cited by the primary judge,115 the High Court explained:116 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. In that sense, the beneficiaries as a class may be said to have an interest in the entire estate. 213 The state of the evidence about the account the subject of the bequest to the respondent does not allow a conclusion that the respondent should not be treated as a beneficiary for the purposes of standing in the present matter. The bequest conferred on the respondent, on the death of the deceased, a right to have the estate 113 See, e.g., Collicoat v McMillan [1999] 3 VR 803 at 818. 114 (1990) 170 CLR 306. 115 [2025] SASC 86 at [68]. 116 Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 at 313. -- 53 of 58 -- [2026] SASCA 2 Bleby JA 50 administered in accordance with the duties of the applicant as executor.117 That is a sufficient right to confer standing on the respondent. 214 I turn to the specific grounds treated in this group. In doing so, I add the qualification that for the reasons given earlier, it is not clear to me whether, as a matter of law, it was necessary to appoint an administrator in order to preserve an IFP Act claim before 1 January 2025. Bearing that in mind, I nonetheless answer the complaints about the judge’s determination of standing by reference to both heads of standing, that is, as potential IFP Act claimant and beneficiary. Ultimately, for the reasons already given, I am satisfied that the respondent’s status as a beneficiary was sufficient to confer standing. Ground 7 215 Ground 7 complains that the judge erred in holding that the predominant purpose of facilitating an IFP Act claim prior to 1 January 2025 provided a proper justification for the claim. However, the judge ultimately relied on both the respondent being an appellant for family provision under the IFP Act and his interest as a beneficiary. For the reasons given above, either was sufficient to demonstrate the appellant’s interest. I would dismiss this ground. Ground 8 216 This ground complains that the judge erred in accepting that the respondent had standing where he had failed to demonstrate ‘any credible or reasonable basis for an entitlement to provision’ pursuant to the IFP Act and where otherwise he was entitled at most to a potential legacy which only would have justified, at most, a limited investigation into the existence or otherwise of the Gem Holdings M3 account. 217 For the reasons given above, once the respondent had been named as a beneficiary, even of a specific bequest, he had an interest in the administration of the estate. That is enough. I would dismiss this ground. Ground 9 218 This ground complains about the judge’s treatment of disentitling conduct, to the effect that he erred in holding that: (a) disentitling conduct for the purposes of the IFP Act must be conduct directed towards the testator; (b) evidence of disentitling conduct on the part of the respondent was not relevant to and did not provide a basis upon which the Court might refuse the application for the appointment of an administrator ad colligenda bona; and 117 Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 at 314. -- 54 of 58 -- [2026] SASCA 2 Bleby JA 51 (c) it was premature for any consideration to be given to the conduct of the Respondent and/or that there was no evidence before the Court as to permit it to take account of such matters. 219 These particulars ultimately fail given my conclusion about the respondent’s interest by reason of being a named beneficiary in the will. In any event, as to (a), the judge said:118 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 Gilbert119 Jordan CJ said that for the purposes of a comparable provision120 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. (Citations in original; emphasis added.) 220 While it is, perhaps, a little difficult to reconcile the first of these paragraphs with the emphasised passage in the second, it seems clear that the judge did not positively find that only conduct directly targeted at the testator would be relevant. In Collicoat v McMillan,121 Ormiston J observed of the comparable Victorian legislation:122 Even in the case of conduct disentitling the alleged behaviour must be looked at from the viewpoint of the testator and the test has been stated as requiring proof of defects in character or conduct of such a nature “as would ordinarily move a just spouse or father to take them into consideration when making his testamentary disposition”: see Wenn v Howard [1967] VR 91 at 95. 221 I do not propose to traverse the cases that have considered this question. I am prepared to accept that the discretion in s 7(3) of the IFP Act looks beyond the narrow confine of conduct directed specifically at the testator. The inclusion of the word ‘character’ indicates as much. I can see the potential relevance of the conduct of the respondent to the appellant, a son of the deceased, to the Court’s consideration of the discretion in s 7(3). In this regard, the judge went on to say:123 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.124 It follows that an applicant’s conduct towards persons other than the deceased, for example, where the conduct evinces disinterest, hostility, abuse, or even 118 [2025] SASC 86 at [52]-[53]. 119 (1946) 46 SR (NSW) 318 at 321. 120 Section 3(2) of the Testator’s Family Maintenance and Guardianship of Infants Act (1916) (NSW). 121 [1999] 3 VR 803. 122 Collicoat v McMillan [1999] 3 VR 803 at 818 [43]. 123 [2025] SASC 86 at [54]. 124 Collicoat v McMillan [1999] 3 VR 803 at 818. -- 55 of 58 -- [2026] SASCA 2 Bleby JA 52 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,125 to the extent that it is capable of affecting the deceased’s moral obligations. 222 On no view did the judge confine his view of disentitling conduct to conduct directly targeted at the deceased. In any event, he ultimately considered that it was premature to take into account potential disentitling conduct. I would dismiss this particular. 223 As to (b), the judge said:126 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. 224 For the reasons given earlier, I would accept that situations can be envisaged where disentitling conduct may demonstrably stand in the way of an IFP Act claim and thereby affect the assessment of the interest of an appellant for an urgent limited grant. In the present case, however, absent any broader evidential context in which that conduct would be viewed at trial, the possible effect of that conduct on the exercise of the discretion in the prospective IFP Act claim was entirely uncertain. I would dismiss this particular. 225 As to (c), the judge said:127 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. 226 For the reasons given immediately above, I would dismiss this particular also. 227 I would dismiss Ground 9. Ground 10 228 Ground 10 complains that the judge was wrong to hold, ‘if he did so hold’, that the appellant had not adduced relevant evidence of disentitling conduct. It complains that the judge should have taken such conduct into account where the very occasion for the urgent need for the limited grant was to facilitate a claim for further provision out of the estate under the IFP Act. This ground does not identify any further basis for elevating the significance of the asserted disentitling conduct. I would dismiss it. 125 McKenzie v Topp [2004] VSC 90 at [39]. 126 [2025] SASC 86 at [55]. 127 [2025] SASC 86 at [56]. -- 56 of 58 -- [2026] SASCA 2 Bleby JA 53 Ground 11 229 This ground attacks the following finding of the primary judge:128 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. 230 The appellant complains that the judge failed to have sufficient regard to various facts. I address each in turn. (a) The Respondent’s standing, if any, as a potential claimant under the IFP Act did not give rise to duties in the Executor to the Respondent of the kind or in the manner described 231 For the reasons given earlier, the appellant, as executor, had duties to the respondent both as a potential claimant under the IFP Act and as a beneficiary in the will. I would dismiss this particular. (b) The purported bequest out of the will to the Respondent only gave rise to a very limited basis in standing and did not require the Executor, and certainly not at the stage which the proceedings had reached, to provide a full accounting to the Respondent of the administration of the Estate; 232 For the reasons given above, the respondent had an interest in the due administration of the estate as a whole. That interest supported the limited grant as sought. I would dismiss this particular. (c) Any assumption of standing based upon the purported bequest assumed the very existence of a valid, enduring and operative bequest which was one of the very issues to be determined on a substantive hearing. 233 There was no ‘assumption’ of standing. The respondent was named as a beneficiary in the will. The bequest was an actual bequest. The only explanation of the fate of the account the subject of that specific bequest, to the effect that it had been adeemed, was the subject of the evidence of Mr Griffin. That suffered from the infirmities I have described earlier. These matters were within the knowledge of the appellant or able to be determined on his inquiry. The Court was entitled to act on the state of the evidence as it found it. Again, the respondent had an interest, on the basis of this bequest, in the due administration of the estate as a whole. 128 [2025] SASC 86 at [47]. -- 57 of 58 -- [2026] SASCA 2 Bleby JA 54 (d) The Respondent pitched his claim to standing to pursue an urgent application based upon a potential claim under the IFP Act. 234 The respondent did do this. He also based his application for a limited grant on the fact that he was a named beneficiary in the will. For the reasons given earlier, this was a sufficient basis on which to assert standing. I would dismiss this particular. Conclusion 235 The respondent opposed a grant of leave to appeal. I am satisfied that the extent of the explication required to answer the grounds of appeal, and the need to examine some relatively arcane aspects of the Court’s jurisdiction warrant a grant of leave generally. To the extent that leave may be required, I would grant leave to appeal but dismiss the appeal. 236 DAVID JA: I agree with the reasons of Bleby JA. I would dismiss the appeal. -- 58 of 58 --