IMO Will and Estate of Mary Stewart Boundy
[2010] VSC 648
•4 June 2010
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
No. S PRB 2008 07509
IN THE MATTER of the Will and Estate of Mary Stewart Boundy deceased
| WILLIAM ANDREW BOUNDY AND IAN MAURICE BOUNDY | Applicants |
| v | |
| Respondent | |
| MARY VICTORIA GAYET |
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JUDGE: | Gardiner AsJ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 June 2010 | |
DATE OF JUDGMENT: | 4 June 2010 | |
CASE MAY BE CITED AS: | IMO Will and Estate of Mary Stewart Boundy | |
MEDIUM NEUTRAL CITATION: | [2010] VSC 648 | |
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EXECUTOR’S COMMISSION ― Application pursuant to s 65 of Administration and Probate Act 1958(Vic) ― Award made of commission.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr G Baker | Sharrock Pitman Legal |
| For the Respondent | Mr R Boaden | Anthony Raso and Associates |
HIS HONOUR:
On 21 June 2007, Mary Stewart Boundy (the deceased) died leaving a will dated 12 June 2002 (the Will). The will provided that after the payment of two bequests that the residuary estate pass to the deceased’s children as tenants in common in equal shares.
The deceased’s five children were also named as executors in the will. Of those children, Norman, William and Ian Boundy together with Mary Gayet were granted probate of the will on 16 June 2008. By separate orders of Daly AsJ, respectively made on 9 February 2009 and 4 March 2009, Mary Gayet and Norman Boundy were removed as executors.
On 22 December 2009, William and Ian Boundy made application by summons pursuant to s 65 of the Administration and Probate Act 1958 (Vic) for executors commission. That section provides:
It shall be lawful for the Court to allow out of the assets of any deceased person to his executor, administrator or trustee for the time being such commission or percentage not exceeding five per centum for his pains and trouble as is just and reasonable.
The application is supported by an affidavit sworn by the applicants on 22 December 2009.
On 18 February 2010, I made orders which provided, among other things, that the residuary beneficiaries in the estate be given notice of the application and an opportunity to file affidavit material in opposition if they so chose.
Mary Gayet has availed herself of that opportunity. She opposes the application and has filed an affidavit sworn 24 May 2010. The other residuary beneficiaries named in the will, Stewart and Norman Boundy, do not oppose the award of commission to the applicants.
The solicitor for the applicants have filed two affidavits in response to Mary Gayet’s affidavits denying the matters she accuses them of in her affidavit.
The administration account for the estate, drawn up to 21 December 2009 which has been filed reveals that in the administration of the estate, there have been receipts on the corpus account of $4,135,003.49 and on the income of $156,245.52. There have been disbursements on the corpus account of $337,400 and on the income account of $46,763.91. Of those disbursements, approximately $100,000 has been paid in legal fees to the solicitors for the estate, Sharrock Pitman Legal, who are also the applicants’ solicitors. There is no particularisation in the applicants’ affidavit material as to what specific legal services were provided by those solicitors, aside from the minimal narration in the administration account, which indicates that in respect of some of the accounts paid the solicitors provided conveyancing services.
The applicants’ affidavit, after detailing the formal matters required to be deposed to under Rule 10.02 of the Administration and Probates Rules 2004, describes the “pains and trouble” with which they were involved in the administration of the estate. There were ten properties which had to be auctioned. This involved the engagement of agents, preparing the properties for sale, dealing with tenants and attending each of the auctions and other incidental tasks. This work was tedious rather than onerous in nature but no doubt involved a considerable amount of time and some responsibility. The applicants do not depose to the amount of time involved. Apparently, they did not maintain a diary or chronicle of the tasks performed.
The applicants’ affidavit also refers to the acrimony and tension between the applicants and Mary Gayet, their sister. Applications were required to be made to the Court in respect of Mary Gayet and the other executor who was removed (in his case by consent), Norman Boundy. It is obvious from reading both the applicants’ affidavit and that of Mary Gayet that there is very considerable animosity and ill feeling between them. In the context of this application, it took the executorship out of the ordinary and, no doubt, was the source of anxiety for all concerned.
Mary Gayet’s affidavit contains much inadmissible material and scandalous assertions against the applicants and their solicitor. It is not appropriate for me to attempt to resolve where the blame lies in respect of the breakdown in the relationship between the parties in the current application. I have to exercise my discretion having regard to well established principles on the evidence before me.
One point which is made by Ms Gayet in her affidavit, which to my mind is of significance in the current application, and reinforced in submissions made by Mr Boaden who appeared for Ms Gayet, are the sums that have been expended on behalf of the estate in legal fees. Mr Boaden contended that the $100,000, which has been paid to the solicitors, should be taken into account by me in the exercise of my discretion as to what amount I should award the applicants as commission. This is an application of the principle that if a great deal of work has been carried out by solicitors in and about an executorship, the executors themselves should not be rewarded also for that work by way of commission.
In approaching these types of applications, the decision of Smith J of this Court in Re Will and Estate of Stone (deceased); Patterson v Halliday[1] is often revisited and applied as something of a template. His Honour stated at [27]:
[1][2003] VSC 298.
In assessing commission it was common ground that the Master had to consider at least the following:
(a)the work and judgement involved in the realisation of assets and earning income;
(b)the extent of administrative activities;
(c)the responsibility generally;
(d)the amount of work done not reflected in financial terms;
(e)how long the estate was administered;
(f)the size of the estate and its capacity to pay;
(g)the work of a non-professional character not undertaken by the applicant and performed by professionals; and
(h)executor’s pains and troubles relative to the result.
This estate was a relatively large one and involved selling ten properties. It would appear to have been administered in an acceptable time frame. The applicants were assisted by agents and solicitors in that task and they also were involved in physical work cleaning up the properties and other incidental tasks related to the realisation of the properties. Because of the number of properties involved, I infer that there was a good deal of administrative work required in liaising with estate agents solicitors and others. Aside from what might be described as the tedium attending the responsibility for the sale process, there was the anxiety and unpleasantness in the applicants’ dealings with their sister. As I have said, I cannot ascribe the blame for the situation which unfortunately exists between them but it is obvious that the acrimony has added to the “pains” of the applicants.
When I come to exercise my discretion under section 65, the approach is to review what work was done by the executor, what difficulties were encountered and the length of time it took. This is because the section requires recompense for “pains and trouble”. In his work, “Executor’s Commission”, Master Vance interpreted the expression “pains and trouble” as meaning respectively responsibility, anxiety and worry and work done, citing the New Zealand authority of Alan McLean deceased.[2] Master Vance stated at page 182 of his work:
“The correct approach to the matter of quantum recognises the fact that the Master’s task and objective is, initially, not that of finding the appropriate percentage rate. It is rather, to determine the amount of commission adequate to recompense the executor for his pains and trouble. The amount of commission will depend upon the extent of the pain and troubles expended, not just only ‘ in realisation of the particular assets of the testator, but in the general administration of the estate.
The question of percentage comes into consideration only after the Master has fixed an amount in his mind, which he wishes to translate into percentage terms. The necessity for this arises from the requirement in the Act that the amount of commission is not to exceed five percent.”
[2][1912] 31 NZLR 139 at 144
The litigation which took place to obtain removal of Mary Gayet as an executor was not protracted and was conducted by the solicitors whose fees have been paid by the estate. As to the aspect of the work of a non‑professional character not undertaken by the applicant and performed by professionals, the evidence does not enable me to make an assessment of what part of the work, if any, the solicitors have performed and charged for which could just as well have been performed by the applicants but the legal fees which have been charged are substantial and in the absence of an explanation I will discount the amount I would otherwise have awarded the applicants.
I consider that an appropriate amount to award on the corpus of $4,135,003.49 is $60,000, which amounts to commission at the rate of 1.45% and $4,000 on the income realised of $156,245.52, i.e. commission of 2.56% of that sum.
I will order that commission be allowed to the applicants being the executors of the estate of Mary Stewart Boundy as follows:
On corpus receipts: $4,135,003.49
Percentage thereof: 1.45% → $60,000
On income receipts: $156,245.52$
Percentage thereof: 2.56% → $4,000
Total:$64,000
I also order that the applicants and Ms Gayet’s costs of this application, including reserved costs, if any, be paid out of the estate on a solicitor client basis.
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