In the Will of - [2022] QSC 276

SUPREME COURT OF QUEENSLAND

CITATION:

In the Will of Michael Paul McLaren (Deceased) [2022] QSC 276

PARTIES:

PAUL DAVID MCLAREN

(applicant)

FILE NO/S:

MS 59/22

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED ON:

8 December 2022

DELIVERED AT:

Rockhampton

HEARING DATE:

30 November 2022

JUDGE:

Crow J

ORDER:

1. Pursuant to s 68 of the Succession Act 1981 (Qld) the applicant be paid an executor’s commission in the sum of $48,420.84 from the estate of Michael Paul McLaren.

2. The applicant’s cost of this application be paid on an indemnity basis from the Estate of Michael Paul McLaren.

CATCHWORDS:

SUCCESSION – PERSONAL REPRESENTATIVES – COMMISSION – DISCRETION OF COURT – GENERALLY – where the applicant was appointed as sole executor of the estate of his deceased son – where the sole beneficiary of the estate was the deceased’s child – where the estate was of moderate-sized but required complicated administration – where the applicant seeks payment of an executor’s commission pursuant to s 68 of the Succession Act 1981 (Qld) – where the amount the applicant seeks is 4% of the corpus of the estate – whether, in the discretion of the Court, the amount sought by the applicant is not unduly generous reward for the work involved.

Succession Act 1981 (Qld), s 68
Uniform Civil Procedure Rules 1999 (Qld), r 657C, r 657E

Re Estate of Badstuebner (2020) 4 QR 490; [2020] QSC 144, considered
Re Estate of Celestino Ghidella [2005] QSC 106, considered
Re Lack [1983] 2 Qd R 613, cited.

COUNSEL:

M T de Waard for the applicant

SOLICITORS:

Taylors Solicitors for the applicant

Michael Paul McLaren was born 7 December 1983. Mr McLaren passed away on 11 June 2016 aged 32 years in an industrial accident. Mr McLaren and Jenny Snodgrass were in a domestic relationship for a number of years and that relationship produced one son, Cooper McLaren. Cooper is currently 10 years of age but was aged only three when his father passed away.
Approximately 12 months prior to Mr McLaren passing away, he separated from Ms Snodgrass. Mr McLaren was a busy man. Mr McLaren conducted an earthmoving business as well as working for a cattle grazier and owned two properties. Mr McLaren had executed a will dated 1 February 2013. Mr McLaren’s will left the whole of his estate to his son, Cooper, but with a right for Ms Snodgrass to live in one of Mr McLaren’s properties (subject to certain conditions). The alternative beneficiaries under the will were Mr McLaren’s niece and Mr McLaren’s father, Paul David McLaren. Mr McLaren Snr was appointed executor of the will and upon his son’s passing attended Mackay from his residence in New South Wales to commence the 7.5 year process of finalising the estate of Mr McLaren.
On 18 November 2022, Mr McLaren Snr filed an application pursuant to s 68 of the Succession Act 1981 (Qld) (Succession Act) and r 657C of the

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2022] QSC 276
Decision Date: 8 December 2022

CaseChat Overview and Summary

The case involves Mr McLaren, appointed as the sole executor of his deceased son's estate, seeking an executor's commission under section 68 of the Succession Act 1981 (Qld). The estate is of moderate size but requires complicated administration due to various claims and business windings. Mr McLaren requested a commission of 4% of the estate's corpus. The court was tasked with determining whether this amount represented a not unduly generous reward for the work involved.

The primary legal issue was whether the executor's commission sought by Mr McLaren was appropriate given the nature and complexity of the estate administration. The court considered various factors, including the value and composition of the estate, the conduct of all persons connected with the estate administration, the nature and extent of work done, and the efficiency of the administration. It also assessed whether the requested commission was a not unduly generous reward for the work involved, as per the statutory discretion provided in the Succession Act.

The court found that despite the estate's moderate value, the administration was complicated, involving numerous transactions and claims. Mr McLaren performed his duties in challenging circumstances, including family conflict. The requested commission of 4% of the corpus was deemed reasonable given the estate's complexity and the executor's efforts. The court concluded that this commission was not unduly generous and ordered it to be paid to Mr McLaren.

The final orders of the court were that Mr McLaren, as executor, be paid an executor's commission of $48,420.84 from the estate of Michael Paul McLaren. Additionally, the court ordered that the costs of the application be paid on an indemnity basis from the estate.

Orders

Orders of the court

1. Pursuant to s 68 of the Succession Act 1981 (Qld) the applicant be paid an executor’s commission in the sum of $48,420.84 from the estate of Michael Paul McLaren.

2. The applicant’s cost of this application be paid on an indemnity basis from the Estate of Michael Paul McLaren.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

In the exercise of that discretion, r 657C of the UCPR sets out information the court requires to be placed in an affidavit in order to properly exercise its discretion. Without proscribing the full extent of matters which can be taken into account in the exercise of the discretion under s 68 of the Succession Act, r 657E of the UCPR provides useful guidance. Rule 657E of the UCPR provides:657E Decision on application for commission(1)In deciding an application for commission by a trustee of an estate, the court may take into account—(a)the value and composition of the estate; and(b)the provisions of the will or trust instrument for the estate; and(c)the conduct of all persons (including the parties) connected with the administration of the estate; and(d)the nature, extent and value of work done by persons other than the trustee, including non-professional work delegated to a lawyer; and(e)the result of any assessment of the estate account, including the scope and merit of any objections raised in a notice of objection before the estate account is passed; and(f)the efficiency of the administration of the estate; and(g)any other matter the court considers relevant.(2)The court may make any order for commission the court considers appropriate. The affidavit material provided by Mr McLaren Snr as executor shows that although the nett value of the estate was a little over $1.2 million, Mr McLaren Snr had to authorise approximately $3.5 million in payments to and from the solicitor’s trust account on behalf of the estate in respect of numerous transactions. The estate, with three claims upon superannuation life insurance policies, winding up of a rural business and an earthmoving business, as well as the sale of two rural properties, leads me to conclude that there was a great deal of work and consideration by the executor in carrying out his duties in a moderate but complicated estate. It is apparent that Mr McLaren Snr had to carry out his fiduciary obligations as an executor in circumstances of family conflict and animus. As the decision in Ghidella’s case shows, if an estate is a simple, largely cash estate, any percentage fee raised upon corpus ought to be relatively low, such as 2%. In the present case, although it is a moderate-sized estate, it was a complicated administration and Mr McLaren Snr has sought only 4% based upon corpus and not any additional percentage upon the income generated during the course of the executorship. It seems to me in all of the circumstances that an award of 4% of the corpus fit comfortably within the phrase as “a not unduly generous reward for the work involved”.[14] [14]Re Lack [1983] 2 Qd R 613 at 617. I therefore order:(a)Pursuant to s 68 of the Succession Act 1981 (Qld) the applicant be paid an executor’s commission in the sum of $48,420.84 from the estate of Michael Paul McLaren.(b)The applicant’s cost of this application be paid on an indemnity basis from the Estate of Michael Paul McLaren.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	In the Will of Michael Paul McLaren (Deceased) [2022] QSC 276
PARTIES:	PAUL DAVID MCLAREN (applicant)
FILE NO/S:	MS 59/22
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court at Mackay
DELIVERED ON:	8 December 2022
DELIVERED AT:	Rockhampton
HEARING DATE:	30 November 2022
JUDGE:	Crow J
ORDER:	1. Pursuant to s 68 of the Succession Act 1981 (Qld) the applicant be paid an executor’s commission in the sum of $48,420.84 from the estate of Michael Paul McLaren. 2. The applicant’s cost of this application be paid on an indemnity basis from the Estate of Michael Paul McLaren.
CATCHWORDS:	SUCCESSION – PERSONAL REPRESENTATIVES – COMMISSION – DISCRETION OF COURT – GENERALLY – where the applicant was appointed as sole executor of the estate of his deceased son – where the sole beneficiary of the estate was the deceased’s child – where the estate was of moderate-sized but required complicated administration – where the applicant seeks payment of an executor’s commission pursuant to s 68 of the Succession Act 1981 (Qld) – where the amount the applicant seeks is 4% of the corpus of the estate – whether, in the discretion of the Court, the amount sought by the applicant is not unduly generous reward for the work involved. Succession Act 1981 (Qld), s 68 Uniform Civil Procedure Rules 1999 (Qld), r 657C, r 657E Re Estate of Badstuebner (2020) 4 QR 490; [2020] QSC 144, considered Re Estate of Celestino Ghidella [2005] QSC 106, considered Re Lack [1983] 2 Qd R 613, cited.
COUNSEL:	M T de Waard for the applicant
SOLICITORS:	Taylors Solicitors for the applicant