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Re Buckingham

Re Buckingham

Case [2016] VSC 757 9 December 2016

Limitation Periods

Costs

Executor’s commission

Succession Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

TRUSTS, EQUITY & PROBATE LIST

IN THE MATTER of the Will and Estate of HENRY LAURIE BUCKINGHAM,

Deceased

S PRB 2014 05493

STEPHEN LAURIE BUCKINGHAM

(in his capacity as the Executor of the estate of the abovenamed deceased)

Applicant

PETER BUCKINGHAM and ANNE BUCKINGHAM

Defendants

S CI 2015 06146

PETER BUCKINGHAM and ANNE BUCKINGHAM

Plaintiffs

STEPHEN LAURIE BUCKINGHAM

(who is sued as the Executor of the estate of the abovenamed deceased)

Defendant

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JUDGE:	McMillan J
WHERE HELD:	Melbourne
DATE OF HEARING:	22 August 2016, written submissions dated 25 August 2016, 5 and 8 September 2016
DATE OF JUDGMENT:	9 December 2016
CASE MAY BE CITED AS:	Re Buckingham
MEDIUM NEUTRAL CITATION:	[2016] VSC 757

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WILLS & ESTATES — Administration proceeding — Where beneficiaries of estate sought financial information from executor — Where executor failed to provide timely and adequate financial information —Beneficiaries seek administration account for estate — Beneficiaries seek costs against the executor personally — Executor seeks costs against plaintiffs — Supreme Court (General Civil Procedure) Rules 2015, r 63.07— Supreme Court Act 1986, s 24 — Colgate-Palmolive Co v Cussons Pty Ltd (1993) 118 ALR 248 (1993) 118 ALR 248

WILLS & ESTATES — Executor’s commission — Executor seeks commission at 2 per cent on gross value of estate — Administration and Probate Act 1958, s 65 — Supreme Court (Administration and Probate) Rules 2004, Order 10 — In the Estate of Stone (deceased); Patterson v Halliday [2003] VSC 298 — Hawkins v Barkley Brown [2010] NSWSC 48

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APPEARANCES:	Counsel	Solicitors
For the Applicant/Defendant	Mr R Edmunds	McDonald Slater & Lay
For the Defendants/Plaintiffs	Ms U Stanisich	Lewis & Weir

HER HONOUR:

Introduction

Henry Laurie Buckingham died on 17 December 2013. He was survived by his three children, Peter Buckingham (‘Peter’), Anne Buckingham (‘Anne’) and Stephen Buckingham (‘the executor’).

By his will dated 28 March 2013, the deceased left his property in Mordialloc and his personal chattels, save for his motor vehicle, to the executor and the residue of his estate to his three children in equal shares. Probate was granted to the executor on 15 April 2015.

The inventory of assets and liabilities of the deceased filed with the application for the grant disclosed assets valued at $6,100,000, comprising the Mordialloc property valued at $1,000,000, an amount of $3,801,608 in investments, shares valued at $1,285,422, a car valued at $5,000 and chattels valued at $10,000.

Significant disputes have occurred between Peter and Anne on the one hand and the executor on the other hand that culminated in these two proceedings. The parties have filed detailed affidavits in support of their positions taken in each proceeding.

The administration proceeding

The first proceeding arises from dissatisfaction by Peter and Anne with the executor’s administration of the estate. In December 2015, they issued a proceeding against the executor seeking an administration account and distribution of the assets of…

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.

Continue reading Re Buckingham

Details

AGLC: Re Buckingham null [2016] VSC 757
Case: [2016] VSC 757
Decision Date: 9 December 2016

CaseChat Overview and Summary

In the Supreme Court of Victoria, the beneficiaries of the estate of a deceased individual brought an application against the executor for financial information. The beneficiaries alleged that the executor had failed to provide timely and adequate financial information, which was necessary for them to understand the status and administration of the estate. The beneficiaries sought an administration account for the estate and requested that the executor be personally liable for the costs of the application. The executor, in turn, sought costs against the plaintiffs, arguing that they had acted reasonably and in good faith.

The court had to determine whether the executor's failure to provide financial information justified the beneficiaries' application for an administration account and whether the executor should be personally liable for the costs. The court also had to consider the executor's entitlement to a commission on the gross value of the estate and whether the executor had acted reasonably and in good faith.

The court held that the executor's failure to provide financial information justified the beneficiaries' application for an administration account, and the executor should be personally liable for the costs. The court found that the executor had acted reasonably and in good faith, and therefore, the executor was entitled to a commission on the gross value of the estate. The court ordered the executor to provide the beneficiaries with an administration account and to pay the costs of the application. The executor was also entitled to a commission of 2 per cent on the gross value of the estate. The court dismissed the executor's application for costs against the plaintiffs.

Orders