Monzon v Al Moussawy

1. [1]

   The Court has decided of its own motion to appoint the first plaintiff, Marie Monzon, as an administrator ad litem and an administrator ad colligenda bona of the estate of her late father, Alfredo Centeno (“the deceased”) who died in December 2023. This appointment is necessary to recover and preserve estate assets whilst a contest takes place about the validity of the 2005 will favouring the three daughters of the deceased and a 2022 will which gives his estate to a neighbour, the first defendant.

2. [2]

   This appointment seeks to address a common dilemma in the administration of smaller estates enmeshed in conflict or requiring complex recovery action. Such estates can deserve the appointment of an independent professional administrator, but estate resources are commonly not sufficient to sustain the cost of such an appointment. This dilemma needs to be addressed in a practical way to serve the justice and efficiency objectives of Civil Procedure Act 2005, Chapter 6.

3. [3]

   These proceedings are the subject of continuing pre-trial injunctions and management in the probate and succession list. The background to the administration of this estate shows the need for the first plaintiff’s appointment as an administrator whilst this litigation is underway.

4. [4]

   This judgment deals with an interlocutory issue in the proceedings and makes no findings of fact binding on the parties either as to family history or the making of wills. But the history set out here should be seen as an account of the evidence that the parties are each expected to advance at final hearing based on the filed affidavits. The narrative is taken from both plaintiffs’ and the defendants’ affidavit evidence.

5. [5]

   Most members of the plaintiffs’ family have the same surname and to distinguish them for convenience the Court sometimes refers to them only by their first name without intending any disrespect to any family member. The first defendant is Mr Haider Abed Al Moussawy, who the deceased generally called "Hayden”. The second defendant, Ms Nagham Aziz Al Hasnawi is the first defendant’s wife.

The Deceased, his Three Daughters and a Neighbour – 1977 to 2026

1. [6]

   The plaintiffs are three sisters. They are all daughters of the deceased. The first plaintiff, Ms Marie Monzon, the eldest, was born in 1977 and is now aged 48. The second plaintiff, Ms Christine Marie Centeno was born in 1984 and is now aged 41 years. The third plaintiff, Ms Liza Marie Centeno was born in 1988 and is now aged 37 years.

2. [7]

   The deceased was born in May 1945 in the Philippines and died in Sydney in December 2023, aged 78. The deceased’s wife and the plaintiffs’ mother, Angela Santander Centeno, predeceased him by approximately 18 years. She died on 12 September 2005.

3. [8]

   The deceased made two wills which are in contention in these proceedings. His first will dated 24 August 2005 gave the whole of his estate to his wife and if she did not survive him to the couple’s three daughters. This will was made the same day as the plaintiffs’ mother’s will which gave the whole of her estate to the deceased with a gift to their three daughters should he fail to survive her. These two wills executed on 24 August 2005 were made in the context of the plaintiff's mother’s declining health. She died three weeks later.

4. [9]

   The deceased’s family appear to have migrated to Australia about the time Marie was born and certainly before Christine was born. The deceased and his wife, Angela, took employment in Sydney and purchased a house in the suburb of Bossley Park. From time to time, they travelled back to the Philippines to visit other family members.

5. [10]

   Angela's parents, the plaintiff's maternal grandparents, came out to Australia about the time Christine was born to assist in caring for the three girls. The deceased had a stroke either in 1990 or 1991. The stroke did not affect his mental acuity but was physically disabling and he did not return to full-time employment. Angela continued working.

6. [11]

   In about 1995, the deceased and Angela sold the Bossley Park property and purchased land at Bonnyrigg Heights ("the Bonnyrigg Heights property”) where they built a substantial family home. The deceased, Angela and the three children moved into the home when it was completed.

7. [12]

   Angela was diagnosed with cancer in June 2005 and died in September that year leaving the deceased to bring up his three daughters. The plaintiffs’ evidence at trial will be that their relationship with their father was always good though punctuated from time to time by differences of perspective. The deceased seems to have had a had less liberal outlook than his daughters about their social and personal freedoms. The defendants’ evidence paints a different picture, based upon statements they claim the deceased made to them about his family life. Such evidentiary conflicts will be tested at trial.

8. [13]

   The first plaintiff, Marie, says that she and her father generally had a good relationship, although they had disagreements, one of which was about her marriage when she was 23 when they did not speak for about six months, but she says that they soon overcame those differences.

9. [14]

   The second plaintiff, Christine, says that after their mother's death she and her husband had a good relationship with the deceased who enjoyed seeing his grandchildren. But the deceased had more traditional views about his daughters being involved in romantic relationships. This led to occasional breakdowns in relationships between the deceased on the one side and Christine and Liza on the other. The younger sisters moved out of the family home for periods. Christine moved to her own rental accommodation for a time but returned to the Bonnyrigg Heights property in late 2012. Liza continued to stay in the Bonnyrigg Heights property.

10. [15]

    Christine’s evidence suggests there were occasions where the deceased was angry at his daughters because in his perception they were not respecting the rules he wished to make for their conduct and his social conservatism. This would lead from time to time to angry incidents between the deceased and his daughters. The plaintiffs’ evidence suggests in places that the deceased could suddenly get upset with his daughters when they did something of which he disapproved.

11. [16]

    In 2017 the deceased approached Marie and her husband Winston and suggested that they rent out their family home to save some money and invited them to move in with him to the Bonnyrigg Heights property with their children, his grandchildren. This appeared to be partly motivated on the deceased’s part by a desire to see and have the company of his grandchildren.

12. [17]

    This plan was fulfilled. Together with their four children Marie and her husband moved back into the Bonnyrigg Heights property in April 2017. Liza was already living there. The deceased therefore had all three of his daughters in the home together with Marie's husband and children. Marie was optimistic about how the move back might overcome prior differences with the deceased. But as often happens when different generations live together, Marie says it was not always a happy household. Conflicts arose and about 15 months later, in June 2018, Winston and Marie and their four children moved out to another residential property in the suburb of Plumpton.

13. [18]

    But Liza and Christine stayed living with the deceased the Bonnyrigg Heights property. Marie continued visiting the deceased about three or four days a week when she was not working.

14. [19]

    In an extensive affidavit sworn in April 2025 the first defendant explains that he is a neighbour of the deceased. The first defendant says that in 2021 he met the deceased through informal neighbourly contact. The first defendant further says that over a period he became very friendly and close to the deceased and formed a relationship almost like a father-son relationship with him. The first defendant explains this was possible because the deceased told him that he had little relationship with his daughters. The first defendant’s evidence is that the deceased’s daughters were quite hostile towards the deceased.

15. [20]

    In about March 2022 Liza moved out of the Bonnyrigg Heights property to live with her partner. This created unhappiness with the deceased, did not want her to move out. But Christine stayed at the property right up until November 2022 in the circumstances described below, when the Bonnyrigg Heights property was sold to the second defendant.

16. [21]

    Marie’s evidence is that by May 2022, a few months after Liza moved out of the Bonnyrigg Heights property she was confronted with puzzling conversations with her father about money and property. She recounts these in more detail in her evidence, but several themes predominated.

17. [22]

    Marie says that in about May 2022 the deceased telephoned her to discuss some property which the family owned in the Philippines. The deceased said to her that he wanted to sell some of his own mother's property in the Philippines but could not find the title deeds. The deceased was the oldest living child of his parents, and the plaintiffs understand that according to Filipino law that the deceased was entitled to sell that property. But just why at this time he wanted to sell the family property in the Philippines was not clear to Marie and the deceased did not explain to her why.

18. [23]

    The plaintiffs’ evidence includes material that is consistent with an inference that the deceased was being coerced by other people whilst he was in the Philippines. But the first defendant gives an account of the trip to the Philippines and says the deceased wanted to go on this trip and considered living in the Philippines and was well able to make his own decisions to travel to the Philippines. The first defendant says that he offered to assist the deceased with his property affairs in the Philippines. The first defendant says the deceased was well able to make his own decisions in relation to sale of property in the Philippines and the deceased was the one who initiated that trip.

19. [24]

    Christine says that in about mid 2022 the deceased suffered a fall at home. Christine was still living with the deceased and arranged an ambulance to take him to hospital. That simple act of daughterly care revealed to Christine, so she says, that the deceased was relying heavily upon the first defendant for many matters in his personal and financial life. The deceased suggested to Christine that his daughters should call “Hayden” rather than ringing an ambulance.

20. [25]

    The first defendant was called and arrived at the scene of the deceased’s collapse. Christine disagreed with the first defendant about how the deceased’s situation should be handled. Her evidence and that of the first defendant differ greatly about what happened on this occasion other than that there was conflict between them about who should manage the deceased’s welfare and how that should be done. The evidence on both sides suggests that the first defendant gave little deference to the father-daughter relationship as having priority over the first defendant’s then relationship with the deceased.

21. [26]

    The deceased was taken to Liverpool Hospital. A social worker from the hospital contacted Liza, who was then listed as his next of kin with the hospital. Liza passed those contact details onto Marie. According to Marie, the deceased was given medical advice urging him to undergo heart surgery but was resistant to the idea. Ultimately the deceased discharged himself from hospital and returned to the family home with Liza's assistance. The deceased’s daughters apparently wanted him to take the medical advice but for obscure reasons the deceased insisted on discharging himself from hospital.

22. [27]

    The plaintiffs were disconcerted in July or early August 2022 when a real estate agent’s auction sign was erected without prior notice to them in front of the Bonnyrigg Heights property. Christine, who was then living with her father was very surprised that the deceased had not shared any plans to sell the Bonnyrigg Heights property either with her or with her sisters. The first defendant says that the deceased discussed the sale with him.

23. [28]

    Christine was told shortly afterwards, according to her evidence, that the deceased had sold the property to the first defendant. Christine had met the first defendant in 2021. She became aware that he was a neighbour who lived with his wife and children in the same street as the deceased. She noticed from time to time the first defendant, and the deceased would go out together. After one of these trips in September 2022, Christine says that the first defendant told her that he had bought the property for $800,000.

24. [29]

    After this conversation Christine says that the deceased said to her that he would give her some money from the proceeds of sale, so she could set herself up in a place of her own. If that was his intention, it conflicted with him having sufficient money to buy a place of his own. One of the contests at trial will be whether he had been advised about, or given sufficient thought to, the issue of where and how he would live and be supported after he sold the Bonnyrigg Heights property, as well as trying to do something to support his daughter, Christine.

25. [30]

    In mid-November 2022, Christine says the first defendant told her that she had to move out of the Bonnyrigg Heights property, so that he could start renovating it. It is not clear why he would be renovating a house he no longer owned. The first defendant appears to have told Christine by then that the house had apparently been transferred out of the deceased’s name to the second defendant.

26. [31]

    The evidence is incomplete about what happened next, but the deceased seemed reluctant to share information with daughters about the sale. But Christine accepted that it had occurred and vacated and she moved temporarily to a hotel for a week. She later moved in with another relative.

27. [32]

    The first plaintiff, Marie, met the first defendant, Mr Al Moussawy about this time. Mr Al Moussawy delivered Christine’s belongings to her relatives’ house in late November 2022 and told her that he had paid the deceased $800,000 for the house. The plaintiffs believe that the house was worth about $1.25 million in November 2022. Its precise value at that time will be a matter for contest at a final hearing.

28. [33]

    The deceased was admitted to hospital again in mid-2023. The third plaintiff, Liza, was the main next of kin point of contact at the hospital and she consulted with the other plaintiffs about the medical treatment being administered to the deceased. They were advised that the deceased needed heart surgery to which he eventually agreed. The heart surgery occurred and the deceased was discharged. Despite the information that the plaintiffs had received about the sale of the Bonnyrigg Heights property and the second plaintiff’s eviction from the property, and despite gaining information that he had sold his property below market value, the plaintiffs did not seek to take control of the deceased’s financial affairs.

29. [34]

    The plaintiffs received unsettling news about their father in early September. On 6 September 2023, a relative of the plaintiffs, Ms Jennifer Deloy, called Marie from the deceased’s family home in the Philippines. She told Marie that some people had dropped the deceased off at Ms Deloy’s home in the Philippines without a passport, money or clothes and that Ms Deloy was looking after him and had purchased him clothes with her own money. Ms Deloy sent a video of the deceased to Marie. Ms Deloy explained that she was concerned about the deceased’s state of health. The plaintiffs claim the video shows he was disorientated, weak and had bandages on his arms and legs. The plaintiffs’ case is that the first defendant was one of the people who appears in the video.

30. [35]

    A few days later Marie was able to speak to her father who conveyed there was a difficulty with obtaining the title deeds to the family home in the Philippines, Ms Deloy ultimately reported these circumstances to the police. Ms Deloy later rang Marie and handed the telephone to the first defendant, who explained that he was there to take possession of the title deeds of the family house in the Philippines, “so that we can sell it”. The first defendant’s case is that deceased wanted to go to the Philippines and asked the first defendant to accompany him there.

31. [36]

    The evidence at trial will be that the deceased held a joint account with a neighbour in the Philippines, possibly to assist with the management of the Philippines family property and that while the deceased was there about $19,000 was withdrawn from this account. Much of the detail of what followed in the Philippines is unclear and will be contested at trial.

32. [37]

    But it is useful now to return to the sale of the Bonnyrigg Heights property and examine the transactional evidence.

33. [38]

    On 16 November 2022 the deceased transferred the Bonnyrigg Heights property to the second defendant, Ms Nagham Aziz Al Hasnawi, the first defendant’s wife. The first defendant says that he and the second defendant have lived separately for many years although they remain married. The couple’s children live with her.

34. [39]

    The consideration expressed on the November 2022 Real Property Act transfer of the Bonnyrigg Heights property is $750,000. The transfer shows that Vietaust Lawyers were acting on behalf of the transferor and other lawyers, KG Sharmi Co Lawyers, were acting for the transferee. Whether the full consideration was paid at the time, or what partial payment was made will be another contest at trial.

35. [40]

    The plaintiffs contend that the Bonnyrigg Heights property was sold at an undervalue. Some evidence suggests that the Bonnyrigg Heights property was saleable in the range $750,000 to $1.25 million, with a median value of $1.2 million. If that turns out at trial to be correct, then the Bonnyrigg Heights property may have been sold at an undervalue of up to $500,000. The evidence suggests that lawyers, Vietaust Lawyers, acted for the deceased in relation to this sale. But it is presently unclear whether they were merely retained to do conveyancing in respect of a transaction to which the deceased was already committed through discussions with the first and second defendants, or whether the deceased received broader advice (including financial advice) about the transaction.

36. [41]

    This will in due course be of considerable importance. The plaintiffs certainly have a prima facie case that the sale of the Bonnyrigg Heights property was improvident for the deceased in many respects, even if it was not a sale at an undervalue. For example, there is no evidence of any clear legally binding arrangement for the deceased, an elderly and frail man with some dementia and heart disease issues, to be cared for or accommodated after the sale of the property. A contest as to whether it was also an unconscionable transaction will depend in part upon the scope and quality of the advice, if any, that Vietaust Lawyers gave him and whether he had received financial advice. Regrettably the pleadings do not yet elucidate such issues, another matter which will require attention of the lawyers before this matter goes to trial.

37. [42]

    The second defendant's evidence is that the deceased was a chronic hoarder and the Bonnyrigg Heights property was very difficult to market by auction without being cleaned up of hoarded items and that is one of the reasons that a sale to the second defendant was said to be convenient. The sale saved the considerable expense and delay of a major cleanup operation prior to an auction.

38. [43]

    But at trial the plaintiff’s case will probably question why the sale was taking place at all and whether a sale was being encouraged by either of the defendants. The plaintiff’s case at trial will probably also point to a challenge to the first defendant’s case that he did not benefit from the sale of the Bonnyrigg Heights property. The plaintiff’s case will likely contend that the sale increased the joint matrimonial property of the first and second defendants, who are not divorced, even after being apart for a long time.

39. [44]

    After the sale from November 2022 to December 2023 the deceased had no remaining interest in the Bonnyrigg Heights property. Instead, he was entitled to the purchase price of $750,000. Just what happened to the funds he did receive is the next contest between these parties.

40. [45]

    After he vacated the Bonnyrigg Heights property the evidence does not seem to be contentious that deceased lived largely with the first defendant. The best source of evidence about this is the first defendant’s lengthy affidavit. The first defendant says that for about two months after the settlement of the sale of the Bonnyrigg property that the deceased remained at the Bonnyrigg property to sort out his personal effects. The first defendant says he had just moved into a rental property in Austral and the deceased moved in there with the first defendant. The balance of what was left at the Bonnyrigg Heights property was then discarded. The first defendant says he tried to repair the relationship between the deceased and his daughters while the deceased was with him in Austral, as he says he had tried before. The plaintiffs deny this.

41. [46]

    The deceased went to hospital again in June 2023 and finally he was discharged in July 2023 to live with the first defendant. The first defendant took the deceased for a journey to the Philippines before he was readmitted to Liverpool Hospital on 30 September 2023. The deceased never seems to have reinvested the proceeds of sale of the Bonnyrigg Heights property into an apartment or other secure residence for himself. According to the first defendant the deceased was content to live with him in Austral. The first defendant also says that the deceased initiated in conversation with him the idea of making the first defendant his attorney and making a new will wholly in favour of the first defendant to the exclusion of the deceased’s daughters. But the plaintiffs will counter this only made the deceased more dependent upon and vulnerable to exploitation by the first defendant.

42. [47]

    The deceased’s health declined in mid-2023 and he was admitted to Liverpool hospital between 5 June 2023 and 6 July 2023. Upon his discharge from hospital, he executed power of attorney in favour of the first defendant.

43. [48]

    The deceased also executed a will on 25 August 2023 in the offices of Vietaust Lawyers. To support his case propounding the 2023 will, the first defendant has deployed two affidavits of attesting witnesses, Mr Kim Uyen Pham, a solicitor and Ms Selena Luong, a receptionist both at Vietaust Lawyers. Their affidavit evidence proves the formal validity of the 2023 will. Neither affidavit gives any more detailed account of the circumstances in which the deceased came to sign the will or the advice that Vietaust Lawyers gave to him about it.

44. [49]

    The 2023 will revokes prior testamentary instruments, appoints the first defendant as the deceased’s executor and gives the whole of his estate to the first defendant. The will is remarkable for making no mention of the deceased’s three daughters either to make them a gift, or to explain why they were excluded from the deceased testamentary bounty. No Succession Act s 100 statement by the deceased explaining why he excluded his daughters from this will has since been advanced in the proceedings. It is unknown whether any such statement exists.

45. [50]

    The plaintiffs say that they were unaware that the deceased had executed the August 2023 will or that he had visited solicitors for that purpose. By the time he made this will the plaintiffs were no longer living with him.

46. [51]

    Christine’s clear memory was that her father had said that he would give her some of the proceeds of sale of the Bonnyrigg Heights property to assist her to purchase a property for herself. This offer had perhaps been directed to her because she had stayed with her father for the longest of all the children. But whatever happened to the proceeds of sale, no money was ever forthcoming to Christine.

47. [52]

    From the time of settlement of the sale of the Bonnyrigg Heights property in November 2022 up to the deceased’s death in December 2023 substantial amounts were withdrawn from the deceased’s two primary bank accounts, one with St George Bank and the other with the NAB. There will be a strong contest at the hearing about who was responsible for these withdrawals and whether the funds withdrawn were for the deceased’s benefit or whether they may have benefited the first and second defendants or their family members, or indeed other persons. The first and second defendants respectively either deny any involvement in these transactions or alternatively deny any wrongdoing in relation to them and say that the transactions were for the benefit of the deceased. The extent to which the deceased’s power of attorney was used in these transactions is contested. All these contests will be a matter for trial, but a general overview of the details of that future contest is useful to illustrate why these proceedings cannot afford the appointment of an independent solicitor administrator.

48. [53]

    The subpoenaed materials available so far show that the estate has an arguable case that some of the withdrawals may have been unauthorised or were not for the benefit of the deceased, matters which are open to inference from the nature, timing and quantity of the withdrawals. Some examples follow.

    1. (1)

       Some large amounts were withdrawn at times – for example $150,000 was withdrawn on 6 February 2023, a transaction of which the first defendant denies any knowledge.

    2. (2)

       Regular withdrawals of $2,000 were made every few days continuously throughout the whole period from 18 November to 2022 to 2 December 2023, including periods that the deceased was in hospital between 5 June 2023 and 7 July 2023 and between 30 September 2023 and 2 December 2023 with little alteration in the rate or volume of withdrawals.

    3. (3)

       Some payments made on the deceased’s behalf for which receipts are available, could not readily be justified as being for his benefit including the following.

    4. (4)

       If the deceased received $750,000 on settlement of the Bonnyrigg Heights property, little of it now remains either in his accounts or in cash. Yet he did not acquire any substantial property with the proceeds of sale, nor did he satisfy any major identifiable pre-existing liabilities.

49. [54]

    The defendants have not yet put on all their evidence in relation to these transactions. The first defendant does not admit proceeds of sale of the Bonnyrigg Heights property were dissipated without explanation and he has sought to explain some of the transactions in which he agrees he was involved. Who had the custody of the account information and access cards allowing these accounts to be operated before the deceased’s death will be important issues in the proceedings. If the withdrawals took place at ATM machines the trial may involve the estate issuing subpoenas for video information associated with withdrawals from those ATM machines.

50. [55]

    The first defendant says in his detailed affidavit that some of the cash withdrawals after the sale of the Bonnyrigg Heights property are explained by the first defendant trying to take money out of his bank accounts to keep funds away from his daughters. This cash has not been recovered. Whether the first defendant was involved in trying to keep this cash safe for the first defendant or what happened to it will be matters for trial, as will the question of whether either of the defendants may be liable for any conduct as enablers of these substantial withdrawals. Despite this the defendants have sought to give quite a complete account of their dealings with the deceased.

51. [56]

    The full scope of the defendants’ defences, including whether they concede involvement in some of these transactions, will be a matter for trial. The estate’s pursuit of these matters will require further detailed work on its part, including pressing to produce documents from the defendants and potentially the consideration of the joinder of other parties. Whether any third parties were involved in this expenditure must be ascertained quickly for the trial to proceed efficiently. It must also be ascertained for the same reason, the defendants had practical control of the deceased’s various bank accounts either directly or through the power of attorney.

52. [57]

    After the deceased’s death approximately $7,000 was withdrawn from the deceased’s NAB bank account between 12 December 2023 and 10 January 2024 by someone, including three amounts of $2,000. The plaintiffs say it was not them. The first defendant says he was executor of the deceased will entitled to apply these funds pending a grant of probate to him.

53. [58]

    After the deceased’s death approximately $30,000 (mostly in amounts of $2000) was withdrawn from the deceased St George bank account between 12 December 2023 and 23 March 2024. The first defendant says that he is responsible for these withdrawals which we used to pay the deceased funeral expenses.

54. [59]

    On 2 December 2023 Liverpool Hospital informed the plaintiffs that the deceased had died. Marie says that the plaintiffs attended the hospital after receiving this news but were advised they were no longer named as the next of kin and the hospital would not discuss with them what had happened to the deceased. They were told the “next of kin” were overseas. They learned this was the first defendant and were mystified as to how a non-blood relative could be named as the next of kin.

55. [60]

    The first and second plaintiffs met with the first defendant on 15 December 2023 to discuss the deceased’s funeral arrangements and the disposition of the deceased’s personal belongings, including his motor vehicle. The first defendant said that he would arrange the burial and contact them with “the specific details”. The plaintiffs’ evidence will be that he suggested the funeral would be “either the 26th or 27th of December”, but he was “not sure” exactly what day it would take place. The plaintiff’s case is that the first defendant did not inform them of the date for the funeral but they attended by contacting the funeral director.

56. [61]

    The plaintiffs filed a Summons commencing these proceedings on 3 October 2024. The Summons sought that the first and second plaintiffs, the named executors in the 2005 will, be granted probate of that will. The Summons also sought family provision relief for all three plaintiffs under Succession Act s 59 and that the Bonnyrigg Heights property should be deemed as notional estate of the deceased under Succession Act, Chapter 3.

57. [62]

    An immediate practical difficulty for any family provision claim is working out whether there is any value in the deceased’s estate. The evidence from both sides so far does not identify any substantial assets in the estate. So far as the Court can presently see the estate’s principal assets are: (a) its claim against the second defendant to set aside the transfer of the Bonnyrigg property to the second defendant; and (b) various claims in restitution, equitable compensation and tort against the first defendant and other persons who may have misapplied the deceased’s liquid assets for their own benefit without his authority or through their control of the deceased’s accounts enabled others to misapply the deceased’s funds.

58. [63]

    The plaintiffs’ claim that the transfer of the Bonnyrigg Heights property to the second defendant in November 2022 is a "relevant property transaction" within the Succession Act 2006, Part 3.3. This claim is certainly arguable. There is some evidence that the transfer took place other than for full valuable consideration, although that will be disputed at trial: see Succession Act, s 75.

59. [64]

    An order may be made designating property as notional estate of a deceased person if a deceased entered into a “relevant property transaction” within three years before the death of the deceased, "with the intention wholly or partly denying or limiting provision being made out of the estate of the deceased" for potential claimants under Succession Act, Chapter 3.3, such as the plaintiffs. The transfer of the Bonnyrigg Heights property was within three years. There will be debate at final hearing as to whether the transfer took place, "with the intention" of limiting provision in this way, but that is a matter for final hearing.

60. [65]

    The Defence concedes that the Bonnyrigg Heights property might be designated as notional estate within Succession Act, Chapter 3 but says that claim is diminished by the second defendant paying valuable consideration for the property without notice of any of the issues now raised by the plaintiffs and that it was acquired as part of an arm’s length transaction with the deceased. At a final hearing the merits of that defence will be closely linked to determination of the second defendant’s knowledge (or lack thereof) of any alleged unconscionable conduct in relation to the transfer of the Bonnyrigg Heights property.

61. [66]

    These proceedings have been case managed in the Court’s Probate List since the first half of 2025. Various orders were made to progress the proceedings and interim preservation orders and ancillary orders made to ensure that the Bonnyrigg Heights property and other property over which the estate had claims was conserved. Some of those orders are detailed below.

62. [67]

    The Court has sought at an early stage of the proceedings to stabilise the legal position of the assets in dispute. On 8 April 2025 the Court made orders restraining both defendants from further dealing with the estate’s assets in their possession, or any assets in which they knew or had reason to believe were estate assets in their possession.

63. [68]

    It soon became clear that the estate needed to be bound in disputes about estate assets between the parties. On 24 April 2025 the Court joined the estate of the deceased as the third defendant in the proceedings pursuant to Uniform Civil Procedure Rules 2005 (”UCPR”), r 7.10 and ordered the proceedings might continue against the estate until further order in the absence of a representative of the estate. On the same day the Court appointed the plaintiffs as administrators ad litem under Probate and Administration Act 1898, s 74 for the limited purposes of filing a caveat on behalf of the estate over the Bonnyrigg Heights property on the grounds of the deceased’s alleged improvident transfer of the said property. This caveat was filed soon thereafter exhausting that grant of administration.

64. [69]

    On 22 July 2025 the first plaintiff moved the Court orally to be appointed administrator ad litem of the estate of the deceased and the Court reserved consideration of whether it would make a general administration order either in the Court’s inherent probate jurisdiction pursuant to UCPR, r 54.7 as discussed in McLean v Burns Philp Trustee Co Pty Ltd (1985) 2 NSWLR 623; [1985] 9 ACLR 926. To support her application for appointment as administrator the first plaintiff undertook to the Court in the following terms:

65. [70]

    The proceedings were then delayed by a series of difficulties on the defendants’ side of the record. The defendants failed to appear on occasions and had difficulty in obtaining and retaining legal representation. The defendants had been ordered to produce documents, which led to disputes about whether adequate production had taken place.

66. [71]

    At the present time the defendants appear to have stable legal representation. On 9 December 2025, Mr T. Barber solicitor appeared for the first defendant and Mr A. Jospeh of counsel appeared for the second defendant. The Court has given the defendants an opportunity to tender evidence in response and put submissions against the plaintiff’s application to have her functions as administrator ad litem extended beyond the limited function presently granted. In the end, no substantial evidentiary case was made against the making of such orders and the Court has decided that a general administration order is not appropriate and that it should make the orders sought for the reasons set out below.

67. [72]

    From the commencement of these proceedings, Ms D Morton, with occasional informal assistance of counsel behind the scenes, has conducted the case on behalf of the plaintiffs. Ms Morton has carefully undertaken the task of issuing over 20 subpoenas to third parties for information in relation to transactions between the deceased and the first defendant.

68. [73]

    She has done this partly to overcome what she contends is defective direct production of documents by the defendants. The Court has made several orders for production against the defendants; including detailed orders for production on 24 April 2025. But there are ongoing disputes between the parties about the adequacy of production that are not yet resolved.

69. [74]

    Apart from the three plaintiffs’ claims under the Succession Act, s 59, the pleadings present a contest in relation to the two wills. In the Statement of Claim the first and second plaintiffs, the named executors, seek probate of the 2005 will.

70. [75]

    The Statement of Claim also pleads what appears to be a mixed claim in relation to the Bonnyrigg Heights property. Apart from claiming the property is notional estate, the Statement of Claim also pleads that the transfer of the property in November 2022 to the second defendant was an improvident transaction and led to the unjust enrichment of both the first and second defendants, due to their undue influence.

71. [76]

    Although somewhat informally pleaded, the Court interprets this as a claim to set aside the transfer of the Bonnyrigg Heights property on the grounds of undue influence or unconscionable conduct of the defendants or on their behalf. This claim does not belong to the plaintiffs but to the estate. It can only properly be brought on behalf of the estate.

72. [77]

    The first defendant put on a detailed Defence which included evidence rather than strict pleadings. It consisted of the following main elements. First, the first defendant says that the deceased was not cognitively impaired and was a free and willing testator when he made the 2023 will. The Defence pleads that he considered the expectations of his biological children and decided to exclude them from his testamentary bounty. The Defence pleads that the deceased had a close and confidential relationship with the first defendant and little or no relationship with his daughters.

73. [78]

    According to his Defence, the first defendant claims that he sought to reconcile the deceased with the plaintiffs, but the plaintiffs refused and that Liza, although living with the deceased for many years, did not communicate with him, and did not render any care to him. As to the sale transaction of the Bonnyrigg Heights property the first defendant says in the Defence that he and the second defendant had been separated since about 2010 and had tried to reconcile number of times and that they now bring up their children in separate households. The first defendant says he did not facilitate the sale of the Bonnyrigg Heights property to the second defendant but that she became aware of the fact that the deceased was attempting to conduct an auction and that she offered to buy it in circumstances, which were of no benefit to the first defendant.

74. [79]

    The plaintiff will probably challenge this defence at trial, contending that the first and second defendant were both involved in encouraging the sale of the Bonnyrigg Heights property by the deceased. According to Christine it was the first defendant himself who confronted Christine on a Sunday afternoon, telling her she needed to move out because he then owned the house.

75. [80]

    The second defendant’s pleaded Defence is uninformative and will need to be amended to define the real issues in dispute between the parties. It currently does little more than plead the general issue.

76. [81]

    In their reply to the first defendant’s Defence, the plaintiffs deny the first defendant’s contentions that he assisted the deceased or that the sale of the Bonnyrigg property was for the deceased’s benefit. The plaintiffs say in reply that the transaction for the sale of the Bonnyrigg Heights property is sought to be presented as not improvident from the deceased’s point of view on the basis that the deceased was going to move into a small apartment using the proceeds of sale, that is not what happened and there was no legally binding arrangement for it to happen. The reply says that instead the deceased moved into a rental property from the end of 2022 and lived independently of the first defendant, then the deceased moved in with the first defendant, being dependent upon him, before travelling to the Philippines and later going to hospital.

77. [82]

    The first defendant also Cross Claimed seeking probate of the 2023 will in his favour in solemn form. The Defence to the Cross-Claim puts formal validity of the will in issue and contends that the deceased lacked capacity to make such a will. Although undue influence does not seem to be expressly pleaded in the Defence to the Cross-Claim, it is pleaded elsewhere. But the pleadings should be clarified with respect to this issue.

Consideration

1. [83]

   A central feature of this case is the plaintiff’s claim that recovery of estate assets from the defendants and possibly other persons is necessary. The defendants resist any such action on behalf the estate and if granted administration ad litem of the estate, they would not pursue such action. On the other hand, the first plaintiff has already flagged a desire to pursue such action. The first plaintiff is also a cross defendant in relation to the claim for probate of the 2023 will.

2. [84]

   This no executor or administrator of this estate. That appointment is still in contest. But by analogy, were an executor to be appointed the refusal of such an executor or trustee to institute proceedings to recover trust property may allow a beneficiary to institute proceedings either in the beneficiary’s own name or in the name of the trustee. The beneficiary may sue in his own name joining as defendants the trustee and any other beneficiaries but only where there are “exceptional circumstances”: Alexander v Perpetual Trustees WA Ltd (2004) 216 CLR 109 approving Ramage v Waclaw (1988) 12 NSWLR 84 and Heydon and Leeming, Jacobs on Trusts, Eighth Edition, LexisNexis, 2016 at [23-03].. Such exceptional circumstances can more readily be found where the trustee refuses to institute proceedings.

3. [85]

   There are clearly exceptional circumstances here that would allow the plaintiff to bring proceedings on behalf of the estate against the defendants. It is unlikely that the defendants would or indeed could bring proceedings against themselves. The only possible options are for the plaintiffs to take this role on behalf of the estate or for an independent executor to do so.

4. [86]

   There are no substantial assets in this estate to fund the appointment of an independent professional trustee. So much detailed work still needs to be done to bring this matter to trial an independent trustee appointment would not be viable. So, the Court must look to appointing the first plaintiff who has volunteered for this role. The Court will not make an order for general administration as it is not practical for the Court to administer this estate either.

5. [87]

   Although the estate is represented already as the third defendant by its joinder under UCPR r 7.10, to properly pursue these proceedings and potentially investigate actions against third parties the broad authority of appointing the first plaintiff as administrator ad litem is more satisfactory than in merely making the first plaintiff a representative of the estate under UCPR r 7.10. The first plaintiff will have to deal with third parties in issuing subpoenas, obtaining documents and potentially joining other parties as defendants on behalf of the estate. The broader and clearer powers of an appointed administrator ad litem will be more satisfactory for the first plaintiff to deal with third parties to gather evidence and pursue the best interests of the estate.

6. [88]

   And there is no conflict of interest between the first plaintiff and the estate, except with respect to settling the plaintiffs’ proceedings against the estate but the grant of administration will not include such a power will be limited to conducting suits on behalf of the estate.

7. [89]

   This outcome is necessary because all the issues in this case are related to an extent and will need to be determined together. What happened with the sale of the Bonnyrigg Heights property, the expenditure of the deceased’s funds after that sale and the circumstances of the making of the August 2023 will should be determined together.

8. [90]

   Moreover, the first defendant has cooperatively consented to the appointment of an independent administrator ad litem. This consent was subject to the undertaking which the first plaintiff has previously provided.

9. [91]

   And the first defendant’s agreement with the appointment of an independent administrator was without admissions. The first defendant contests allegations of wrongdoing or misconduct made against him. The second defendant similarly resists any inference of wrongdoing but did not actively oppose the appointment of an administrator.

10. [92]

    The parties will need to consider other issues: whether and when the proceedings might be referred to mediation; whether if the July 2023 power of attorney was used that proceedings under the Powers of Attorney Act 2003 may be relevant; proving the market value of the Bonnyrigg Heights property in November 2022; ascertaining what Vietaust Lawyers advised the deceased in relation to the sale of the Bonnyrigg Heights property and ascertaining when the evidence on both sides is complete and the matter is ready to go to trial.

11. [93]

    Another important outstanding issue is the deceased’s Philippines real estate. Its value is not known but succession to it will be governed by Philippines law. Investigation needs to be undertaken with the plaintiffs have rights to it under Philippines law or whether it was sold by the deceased before his death.

12. [94]

    This case has unusual complexities for a small estate. The solicitors involved on all sides and Mr Joseph of counsel for the second defendant have been assisting the Court. But neither the first defendant nor the plaintiff has retained full-time representation by counsel with probate and succession expertise. No doubt financial constraints are limiting the parties’ capacity to retain such counsel.

13. [95]

    But the proceedings need, if possible, now to be driven forward by experienced counsel to assist the solicitors involved otherwise the proceedings risk not being managed to achieve the objectives of Civil Procedure Act 2005 Chapter 6. Occasionally counsel in the probate list will volunteer to assist the parties, the retained solicitors, and the Court. One option is the Court to consider a referral to the Registrar for pro bono assistance under UCPR r 7.46. But if the publication of these reasons were to enable such assistance to come forward, it would be welcomed by the Court and the parties.

14. [96]

    Therefore, the Court makes the following orders, directions and notations

    1. (1)

       NOTE that pursuant to the Court’s orders of 24 April 2025 (Order 10) the plaintiffs were appointed as administrators ad litem of the estate (“the estate”) of the late Alfredo Centeno (“the deceased”) for the purpose of filing a caveat on behalf of the estate claiming an equitable interest in the real property at [address not published], Bonnyrigg Heights NSW 2177 (“the Bonnyrigg Heights property”) by reason of the deceased’s alleged improvident transfer of the Bonnyrigg Heights property to the second defendant (“the caveat”).

    2. (2)

       NOTE that the plaintiffs filed the caveat, but the first plaintiff now seeks (and has consented to) the further grant of administration ad litem and ad colligenda bona of the estate to facilitate the recovery of estate property or compensation for the loss of estate property from the defendants or third parties.

    3. (3)

       VARY Order 10 of the Court’s orders of 24 April 2025 to continue the grant thereby made only in respect of the first plaintiff and terminate the grant with respect to the second and third plaintiffs.

    4. (4)

       NOTE the undertaking of the first plaintiff to the Court in the form of Note 4 of the orders of the Court made on 22 July 2025

    5. (5)

       GRANT to the first plaintiff (“the administrator”) administration of the estate ad litem and ad colligenda bona but such grant is limited to taking all necessary steps (in the present proceedings or by other proceedings) to recover any estate property or compensation for the loss of estate property by reason of events or transactions occurring either before or after the death of the deceased.

    6. (6)

       ORDER in respect of the grant in order 5:

    7. (7)

       GRANT liberty to the administrator to apply to the Court to vary the terms of her appointment should that be necessary either due to the course of these proceedings or otherwise to promote the efficient recovery of estate assets and to enhance the net value of the estate.

    8. (8)

       DIRECT the first plaintiff in her role as administrator to provide a list of the assets of the estate or compensation for lost assets of the estate for which she proposes to seek recovery action.

    9. (9)

       ORDER the parties to:

    10. (10)

        NOTE that these proceedings will be case managed further on the basis that all the following matters will be heard together: the probate issues concerning the competition between the 2005 and 2023 wills, the three plaintiffs’ family provision proceedings, and all asset or compensation recovery actions on behalf of the estate will be heard together, either wholly or substantially.

    11. (11)

        DIRECT the parties to serve on one another and the Court by Friday, 20 February 2026 a list of any outstanding procedural steps any party requires to be taken before these proceedings can be set down for hearing.

    12. (12)

        ADJOURN these proceedings before Slattery J on Wednesday, 25 February 2026 at 9.30am.

    13. (13)

        RESERVE costs.