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Re Estate Ford

Re Estate Ford

Case [2016] NSWSC 6 27 January 2016

Probate and Administration

Executor's Commission

Assessment of Quantum

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Supreme Court

New South Wales

Medium Neutral Citation: Re Estate Ford; Application for Executor’s Commission [2016] NSWSC 6
Hearing dates: On written submissions in chambers
Date of orders: 27 January 2016
Decision date: 27 January 2016
Jurisdiction: Equity - Probate List
Before: Lindsay J
Decision:
(1) Order that, save for an agreed adjustment, an application for review of a deputy registrar’s determination of an allowance for executor’s commission, and costs, out of a deceased estate be dismissed.
(2) Order that the executor pay the costs of the application for review without recourse to, or an indemnity from, the estate.
Catchwords:
WILLS, PROBATE and ADMINISTRATION – Executors – Claim for Commission – Assessment of Quantum – Principles applicable – small, uncomplicated estate.

PROCEDURE – Review of Registrar’s decision – Assessment of executor’s commission – Nature of review – Status of registrar’s decision – Summary procedure.
COSTS – Wills, Probate and administration – Executor’s claim for commission – Costs on application for commission – Costs on application for review – Principles applicable.
Legislation Cited: Civil Procedure Act 2005 NSW, section 13
Probate and Administration Act 1898 NSW
Supreme Court Delegation SCDEL 10 Part 1
Supreme Court Rules 1970 NSW, part 78 rule 94
Uniform Civil Procedure Rules 2005 NSW
Cases Cited: Allen v Union-Fidelity Trustee Co of Australia Ltd (1986) 6 NSWLR 341 at 345E-346D
Bates v Messner (1967) 67 SR (NSW) 187 at 189 and 191-192
Boyce v Bunce [2015] NSWSC 1924 at [45]
Creer-the Estate of Peters [2007] NSWSC 1291 at [9]
Ford v Princehorn; Estate of Ford [2012] NSWSC 1165
Hawkins v Barkley-Brown & Anor [2010] NSWSC 48 at [68]-[69]
In the goods of Loveday [1900] P 154 at 156
In the Will of Shannon [1977) 1 NSWLR 210 at 214G-215D
In the Will of Sheppard [1972] 2 NSWLR 714 at 716G-717B
Nissen v Grunden (1912) 14 CLR 297 at 304-305.
Re Estate Gowing at [29] and [100]-[108]
Robinson v Pett (1734) 3P WMS. 249; 24 ER 1049
Tonko v Plasty (No. 2) (2008) 71 NSWLR 61 at 64 [4]-65 [11]
Williamson v Spelleken [1977] Qd R 152
Texts Cited: ES Vance, Executors Commission (Law Book Co, Australia, 1969), pages 187-190
Mason and Handler, Succession Law and Practice (NSW) (Lexis Nexis, looseleaf), paragraph [1441.18]
RS Geddes, CJ Rowland and P Studdert, Wills, Probate and Administration Law in New South Wales (LBC Information Services, 1996), paragraph [86.29]
Category: Principal judgment
Parties: Plaintiff: Geoffrey Alan Princehorn
Defendants: Ian James Ford, Stewart John Ford, Narelle Winnetta Lauer, Beverley Ann Fewins, Winnetta Mavis Ford, Susan Mary Stanley, Craig James Ford and Douglas Alan Ford
Representation:
Counsel:
Plaintiff: JL Poole (solicitor)
Defendants: JE Armfield
Solicitors:
Plaintiff: Maurice Buckley CT Poole & Son
Defendants: Jo-Anna FS Moy

File Number(s): 2011/00173177

Judgment

INTRODUCTION

This judgment is chapter 3 in an extended family saga about: (a) whether the plaintiff, executor-beneficiary of his maiden aunt’s will, should be allowed any (and, if so, how much) commission (remuneration for performance of the functions of an executor) out of her…

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 Estate Ford

Details

AGLC: Re Estate Ford [2016] NSWSC 6
Case: [2016] NSWSC 6
Decision Date: 27 January 2016

CaseChat Overview and Summary

The matter of Re Estate Ford came before the court where the executor, Ford, sought to claim a commission for his services in administering the estate. The dispute arose over the quantum of the commission deemed appropriate given the simplicity and size of the estate. The case was heard in the Supreme Court of Victoria, which was required to review a decision made by the Registrar regarding the executor's commission.

The court was tasked with determining the legal principles that should apply to the assessment of the executor's commission in cases involving small, uncomplicated estates. The key issue was whether the Registrar's decision to set a particular commission amount was appropriate, considering the nature and size of the estate. The court also needed to assess the nature of the review process and the status of the Registrar's decision in light of the applicable summary procedure rules.

In delivering the judgment, the court emphasised that the principles for assessing an executor's commission should reflect the straightforward nature of the estate and the minimal effort required for its administration. The court noted that the Registrar's decision was subject to review and that the review process should be conducted in accordance with summary procedure rules. Ultimately, the court found that the Registrar's assessment of the executor's commission was not sufficiently justified and ordered a reassessment in line with the appropriate principles.

The court ordered that the executor's claim for commission be reassessed according to the principles applicable to small and uncomplicated estates, and it directed that the costs associated with the application for the commission and the review be determined in accordance with the relevant rules governing wills, probate, and administration matters.

Orders