There are occasions where a party in the course of court proceedings passes away – this is a very emotional situation for the family of the person and the litigation is the last thing on their mind. However, the lawyers still require instructions to undertake certain tasks in the proceedings and continue to conduct the litigation – this may require an application for the executor of the deceased estate to be appointed as the representative for the party pending the grant of probate in respect of the estate pursuant to rule 16.03(1)(b) or rule 9.09 of the Supreme Court (General Civil Procedure) Rules 2025 (the Rules).

Prior to Christmas, Catherine Pulverman and her team at FCW Lawyers had to make an urgent application in a Supreme Court proceeding for the executor of the deceased estate to be appointed to represent our client, who passed away in mid December 2025 and was a defendant in the litigation (notably, an earlier application was issued with Orders made in November 2025 for the appointment of the spouse as litigation guardian to the deceased party).  Investigations were undertaken as to the appropriate application and the proposed orders including whether it should seek appointment of the relevant person as administrator ad litem given that probate had not yet been granted.  The application sought appointment of the representative under rule 16.03(1)(b) with orders under rule 9.09 for substitution of the personal representative for the deceased party. The application was lodged on 23 December 2025 with a supporting affidavit setting out the circumstances which had occurred and the grounds for the relevant person being appointed as the representative of the party, written submissions setting out the case law and the consent of the executor to be appointed.  Given the vacation period over Christmas, the application had to be determined promptly in mid January 2026 because the matter was proceeding to trial in mid February 2026 and a range of trial preparation was required to be undertaken in January 2026.

The usual circumstance in which a personal representative is appointed is where there is no person willing or able to take out a grant of probate or administration and where proceedings cannot be continued or disposed of in the absence of a representative of the estate.  The urgency in our matter was the approaching trial date and preparation of trial documents which had to be completed.  Whilst steps were being taken to obtain probate of the Will, the preparation of the specific case for that party required a representative of the estate who could give instructions as soon as possible.  Consideration of the relevant appointee was necessary with consent necessary for that person to act. It was appropriate as the appointee was the spouse of the deceased party, the named executor under the Will, the beneficiary under the Will and no interest in the litigation which was adverse to the deceased party.  Our written submissions referred to numerous cases as to the requirements to be satisfied in an application of this kind and specifical reliance was placed on the case of Bolitho v Banksia Securities Ltd (No 15) [2020] VSC 725 (Bolitho).

A recent Court of Appeal decision of Lee v Yap [2026] VSCA 20 (Yap) considered the nature of these types of applications regarding litigation which is on foot and the appointment of the appropriate person to act for the deceased party. Essentially, if there is a named executor who has accepted the role (even without obtaining probate) then rule 9.09 of the Rules is the appropriate rule for appointment of the specific representative, whereas rule 16.03 of the Rules is used where there is no personal representative at all. The Court of Appeal expressly overruled the decision in Bolitho in that regard.

It is critical to mention some of the important comments which were made in the case:

1. Even though there was a dispute about the validity of the Will in the case, this did not prevent the named executor from being appointed to act as the personal representative of the deceased person;
2. Rule 9.09 was the correct rule and rule 16.03 was not available;
3. Rule 16.03 operates when two preconditions are met including that there is “no personal representative”;
4. Notably, rule 9.09 does not refer to the question whether the deceased person has a “personal representative”;
5. Therefore, only one of the rules can apply in order for the appointment of the relevant person for the deceased party:

a. where a person dies and there is a personal representative, rule 9.09 is available (and rule 16.03 is not);

b. where a person dies and there is no personal representative, rule 16.03 is available (and rule 9.09 is not).

1. The questions for determination by the Court were specific:

The question whether a deceased person has, or does not have, a personal representative invites attention to whether a person who is named in a will as an executor is, thereby, the personal representative of the deceased. It is plain that, once probate has been granted, the executor will be the personal representative. The more difficult question is whether a named executor is the personal representative when probate has not been granted. A further question is whether a named executor can be the personal representative when the validity of the will is in dispute, and whether it matters whether litigation in relation to the validity of the will is on foot.

1. The Rules do not define “personal representative” but consideration was directed to the Administration and Probate Act 1958 (Administration and Probate Act). Given that neither the Rules nor the definition in section the Administration and Probate Act provides a conclusive answer to when a person has a personal representative, the Court considered the position at common law  – the naming of a person as executor in a will is not enough alone to make that person the executor but it  will be necessary to ascertain whether the named executor has accepted the office by their conduct.
2. Based on the analysis of the case law and the interpretation of the legislative requirements, the Court determined that Bolitho and Sorbara were decided on an incorrect legal basis and overruled those decisions.

This was a significant application which FCW Lawyers had to undertake in a short period of time because no steps could be taken in the proceeding pending the determination of the application in relation to the deceased party – guided by Andrew Spierings of Counsel, FCW Lawyers prepared all of the documents for Andrew to settle and assisted with preparation for the hearing of the application.  Acting quickly, obtaining all the necessary evidence to support the application and ensuring that the case law supported the appointment of the executor to the role in order to be able to provide all necessary instructions for the conduct of the proceedings.  However, our reliance on Bolitho as the basis for seeking the orders under rule 16.03(1)(b) and our substitution of the personal representative under rule 9.09 would have slightly changed the nature of the orders obtained a month ago and the decision of Yap would have clarified the position on the basis for our application and the appropriate orders.