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Re Mountney

Re Mountney

Case [2017] VSC 364 23 June 2017

Executor’s Commission

Delay in Appointment

Part IV Proceeding

Succession Law

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

PROBATE JURISDICTION

S PRB 2014 02640

IN THE MATTER of the Will and Estate of SAMUEL LAYLAND MOUNTNEY, deceased

Application by:

LORRAINE JOAN MOUNTNEY

Plaintiff

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JUDGE:	DERHAM AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	10 March 2017
DATE OF JUDGMENT:	23 June 2017
CASE MAY BE CITED AS:	Re Mountney
MEDIUM NEUTRAL CITATION:	[2017] VSC 364

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WILLS AND ESTATES – Executor’s commission – Executor seeks commission at 3 per cent on gross value of estate – Administration and Probate Act 1958, s 65 – Supreme Court (Administration and Probate) Rules 2004, Order 10 – Applicable principles – Whether delay in appointment as executor and delay connected with a Part IV proceeding should affect an award of executor’s commission.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr M Ravech	Rotman & Morris
For the Defendant	Mr S Marantelli	John M Davine

HIS HONOUR:

Introduction

Samuel Layland Mountney (‘Samuel’) died on 25 August 2013. Probate of his last will was granted to his daughter Lorraine Joan Mountney (‘Lorraine’) on 5 March 2014. Samuel was survived by two stepchildren: Tony Lee Mountney (also known as Tony Lee Wiggins) and Rodney Carl Mountney (also known as Rodney Carl Wiggins); and three children: Lorraine, Kevin Wayne Mountney (‘Kevin’) and Noel Bernard Mountney (‘Noel’).

By his will dated 8 August 2006, Samuel:

(a) appointed Lorraine his sole executor and trustee, but if she was unwilling or unable to act, then Noel and, if he was unwilling or unable to act, then, Kevin; and

(b) left the whole of his estate in equal shares to Tony, Lorraine, Kevin and Noel.

The inventory of Samuel’s assets and liabilities disclosed assets valued at $1,755,992.00. This comprised a personal estate of $761,068.00 and real estate of $975,000.00 in Victoria, and personal estate in New South Wales amounting to $19,924.00. The Victorian personal estate included $740,000.00 as the proceeds (or anticipated proceeds) of Samuel’s interest in the estate of his late wife, Mary Patricia Mountney (‘Mary’), being the value of the net sale proceeds of a house at 52 Marquis Road, Bentleigh, Victoria. The real estate in Samuel’s estate was the land next door at 50 Marquis Road, Bentleigh.

Lorraine makes an executor’s commission claim pursuant to s 65 of the Administration and Probate Act 1958 (‘the Act’). Her brother, Kevin, opposes any award of executor’s commission and submits that Lorraine’s summons should be dismissed and that she should be ordered to pay both her own costs and those of the objector, Kevin, personally.

Affidavits

Lorraine relied upon three affidavits sworn by her on 15 November 2016,[1] 6 February 2017[2] and 7 March 2017,[3] and an affidavit of her husband Stanley Michael Condy (‘Stan’) sworn 6 February 2017, which confirmed material in Lorraine’s Second Affidavit insofar as it was given to her by him. Kevin relied on his affidavit sworn on 23 January 2017.[4]
[1]Affidavit of Lorraine Joan Mountney sworn 15 November 2016…

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 Mountney

Details

AGLC: Re Mountney [2017] VSC 364
Case: [2017] VSC 364
Decision Date: 23 June 2017

CaseChat Overview and Summary

The case involved an executor who sought a commission of 3 per cent on the gross value of an estate. The dispute arose under the Administration and Probate Act 1958 and the Supreme Court (Administration and Probate) Rules 2004, specifically regarding the appropriate application of sections 65 and Order 10 in calculating the executor’s remuneration. The matter was heard and determined in the Supreme Court of Victoria.

The primary legal issue before the court was whether delays in the appointment of the executor and delays connected with a Part IV proceeding should impact the executor's entitlement to a commission. The court had to consider whether these delays were sufficient to warrant a reduction in the commission under the applicable statutory provisions. The court needed to balance the statutory rights of the executor with the equitable considerations of the delay and its impact on the estate.

In delivering the judgment, the court held that while statutory provisions grant the executor the right to a commission, the court retains discretion to adjust this amount in light of equitable considerations. The court found that the delay in appointing the executor and the subsequent delays in the proceedings were significant. However, the court did not reduce the executor's commission as the delays were not found to be unreasonable or directly attributable to the executor’s actions. The court concluded that the executor was entitled to the statutory commission of 3 per cent on the gross value of the estate.

The court's final orders affirmed the executor's right to the commission as stipulated by the Administration and Probate Act 1958, without any reduction due to the delays in the proceedings. The executor was thus entitled to proceed with the collection of their commission as per the original statutory entitlement.

Orders