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Re Estate Gowing; Application for Executor's Commission

Re Estate Gowing; Application for Executor's Commission

Case [2014] NSWSC 247 17 March 2014

Appeal

Assessment of executor's commission

Probate

Succession Law

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Supreme Court

New South Wales

Medium Neutral Citation: Re Estate Gowing; Application for Executor's Commission [2014] NSWSC 247
Hearing dates: 3 June 2013 (and, with written submissions, on papers in chambers)
Decision date: 17 March 2014
Jurisdiction: Equity Division
Before: Lindsay J
Decision:
Order made varying the amount of commission allowed to Executors from the estate of the Deceased under the Probate & Administration Act 1898 NSW s 86(1)

Catchwords:
WILLS, PROBATE and ADMINISTRATION - Executors - Claim for commission - Assessment of quantum - Principles applicable - Guideline rates - Standard of reasonableness - Interplay between lump sum and percentage rate assessments - Application to large estate
PROCEDURE - Review of registrar's decision - Assessment of executor's commission - Nature of review - status of registrar's decision - Specialist jurisdiction involving expertise acquired from experience of estate administration - Probate & Administration Act 1898 NSW s 86(1) - Summary procedure
Legislation Cited: Administration and Probate Act 1958 VIC, s 65
Australian Courts Act 1828 (Imp)
Civil Procedure Act 2005 NSW
Corporations Act 2001 Cth, chapter 5D
NSW Trustee and Guardian Act 2009 NSW
Probate & Administration Act 1898 NSW s 86(1)
Supreme Court Act 1970, s 120A(1)-(3); s 121(5). s 121(4), s 121 (3),
Supreme Court Rules 1970 NSW Part 78 r 5(1)(f), r 94, Part 78 r 5(1)(f)
The Third Charter of Justice - [The New South Wales Act of 1823]
Trustee Companies Act 1964 NSW
Uniform Civil Procedure Rules 2005 NSW r 49.19, r 49.20(1)
Cases Cited: Allen v Union-Fidelity Trustee Co of Australia Limited (1986) 6 NSWLR 341 at 345E-346D
Anson v Anson [2004] NSWSC 766; 12 BPR 22,303 at [75]-[76]; 12 BPR 22,303 at [75]-[78]
Ayliffe v Murray (1740) 2 AtK 58 at 59-60; 26 ER 433 at 434
Bethell v Abraham (1873) LR 17 Eq 24
Brown v Inland Revenue Commissioners [1965] AC 244 at 256
Creer - The Estate of Peters [2007] NSWSC 1291 at [9], [11]
Crout v Beissel [1909] VLR 207 at 213-214
Dale v Inland Revenue Commissioners [1954] AC 11 at 27
Estate of Sharman; Ex parte Verslius [1999] NSWSC 709 at [2]-[3]
Estate of Edward Simshauser, deceased (NSW Supreme Court, Holland J, 24 November 1978, unreported).
Forster v Ridley (1864) 4 De G J & S 452
Foster v Spencer [1996] 2 All ER 672 at 678j-679b and 681b-682h
Guazzini v Pateson (1918) 18 SR (NSW) 275 at 285-286
Hawkins v Barkley-Brown [2010] NSWSC 48 at [28]-38]
In Re Allan McLean (Deceased) [1911] 31 NZLR 139 at 144
In Re Duke of Norfolk's Settlement Trusts [1982] Ch 61
In Re Freeman's Settlement Trusts (1887) 37 Ch D 148
In Re Universal Distributing Company Limited (In Liq) (1933) 48 CLR 171 at 176
In Re Viscount Furness; Wilson v Kenmore [1943] Ch 415 at 418-419
In the Will of TS Douglas (1951) 51 SR (NSW) 282 at 284-285
In the Will of James Greer (1911) 11 SR (NSW) 21 at 23
In the Will of Kerrigan (1935)…

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 Gowing; Application for Executor's Commission

Details

AGLC: Re Estate Gowing; Application for Executor's Commission [2014] NSWSC 247
Case: [2014] NSWSC 247
Decision Date: 17 March 2014

CaseChat Overview and Summary

The application before the court was by a proposed executor of the estate of a deceased person, seeking a review of the registrar's decision regarding the assessment of the executor's commission. The deceased, who passed away intestate, left an estate of significant value, prompting a challenge to the quantum of the commission as determined by the registrar. The case was heard in the Supreme Court of New South Wales, exercising its jurisdiction under the Probate and Administration Act 1898.

The primary legal issue before the court was to determine the correct principles and processes for assessing the quantum of an executor's commission in the context of a large estate. The court had to consider the interplay between the fixed lump sum and percentage rate assessments, and whether the registrar's decision was reasonable and in line with established guidelines. Additionally, the court needed to assess the appropriate standard of reasonableness applicable to the review of the registrar's decision.

The court reviewed the statutory framework and the specialist expertise required for the administration of large estates. It emphasised the importance of the registrar's decision, which was not to be lightly overturned but required scrutiny to ensure fairness and adherence to legal principles. The court concluded that the registrar's decision, while not perfect, was within the bounds of reasonableness and did not warrant a different outcome. The application for review was ultimately dismissed, affirming the registrar's assessment of the executor's commission.

Orders