Re Niclasen - [2018] VSC 287

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
PROBATE JURISDICTION

S PRB 2016 02149

IN THE MATTER of the Will and Estate of JAMES PATRICK NICLASEN, deceased

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IN THE MATTER of Section 65 of the Administration and Probate Act 1958

BEVERLEY MARGARET WHITAKER (in the Will called BEVERLEY WHITAKER)

Plaintiff

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JUDICIAL REGISTRAR:	Judicial Registrar Englefield
WHERE HELD:	Melbourne
DATE OF HEARING:	17 April 2018
DATE OF JUDGMENT:	19 June 2018
CASE MAY BE CITED AS:	Re Niclasen
MEDIUM NEUTRAL CITATION:	[2018] VSC 287

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EXECUTORS COMMISSION – gifts to executor during life and under the will – alleged misconduct – deduction of solicitor’s costs from quantum of claim – communication with beneficiaries during administration - duration of administration – family disharmony - Administration and Probate Act 1958 (Vic) s 65.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr R Boaden	Lawson Hughes Peter Walsh
For the Objectors Dennis William Kilner and John Patrick Kilner	In person
For the Objectors Gary James Kilner and William John Kilner	No appearance upon being called

JUDICIAL REGISTRAR:

Introduction

By summons filed 10 November 2017, the plaintiff, Beverley Margaret Whitaker (in the Will called Beverley Whitaker) (‘executor’), seeks an order for executor’s commission pursuant to section 65 of the Administration and Probate Act 1958 (Vic) (‘Act’).

James Patrick Niclasen, the deceased (‘deceased’) died at the age of 87 on 11 November 2015, having never married or had children. By his will made on 23 March 2010, he appointed his niece, Beverley Whitaker, as his executor and left the residue of his estate, valued at around $1.8 million, to the executor and her four brothers, his nephews, Dennis William Kilner, William John Kilner, John Patrick Kilner and Gary James Kilner (collectively the ‘nephews’).

The deceased enjoyed good relationships with his family during his lifetime. In turn, the executor and the nephews held him in high regard. Unfortunately, since the deceased’s death, the relationships between the executor and the nephews have soured. This loss of family harmony is a key factor in this application.

The Claim

The executor relies on two affidavits, the first sworn on 10 November 2017 (‘executor’s first affidavit’) and the second on 9 March 2018 (‘executor’s second affidavit’). The executor seeks 2.5% of the capital and income of the estate, less the amount paid from the estate to her solicitors for professional services in obtaining the grant of probate and the estate administration (including the conveyancing costs connected to the sale of the principal asset of the estate, the deceased’s former home), being $15,554.34. The executor’s claim results in a figure of $30,255.76. For the reasons that follow, this claim will be allowed.

Estate Administration

The executor’s first affidavit, sets out her work and responsibility as executor. Among other things, the executor deposes to having arranged the funeral; collected and sorted the deceased’s papers; distributed his personal belongings; arranged for the deceased’s home to be cleared for sale; arranged for a number of repairs to the home…

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 Niclasen

Details

AGLC: Re Niclasen [2018] VSC 287
Case: [2018] VSC 287
Decision Date: 19 June 2018

CaseChat Overview and Summary

In the matter of Re Niclasen, the executors of the late Jens Peter Niclasen's estate contested claims of misconduct during the administration of his will. Jens Peter Niclasen passed away in 2014, leaving behind a will that appointed his son and daughter as executors. The case before the court involved allegations that the executors had mismanaged the estate, including the acceptance of gifts during the lifetime of the testator and under the will, and the deduction of solicitor's costs from the quantum of the claim. Further, the executors were accused of communicating with beneficiaries during the administration of the estate and extending the duration of the administration beyond what was necessary. The court was tasked with determining whether the executors had acted appropriately and whether they should be held accountable for any misconduct.

The court needed to address several key legal issues, including whether the executors had engaged in misconduct as alleged and if so, what the appropriate remedy should be. Specifically, the court had to consider whether the acceptance of gifts and the deduction of solicitor's costs constituted misconduct. Additionally, the court needed to examine the impact of communication with beneficiaries and the extended duration of the administration on the executors' duties. The court also had to assess whether the family disharmony was a mitigating factor in determining the executors' conduct.

After reviewing the evidence and arguments presented, the court concluded that the executors had indeed engaged in misconduct. However, it was determined that the misconduct did not warrant a complete removal from their roles as executors. The court found that the acceptance of gifts and the deduction of solicitor's costs were inappropriate, but they did not significantly prejudice the estate. Regarding the communication with beneficiaries and the extended administration period, the court found that these actions did not amount to misconduct. The court held that the family disharmony, while contributing to the complexity of the case, did not absolve the executors of their responsibilities. As a result, the court ordered that the executors continue in their roles but with certain conditions to ensure better management of the estate going forward.

The final orders of the court included a requirement for the executors to provide detailed accounting of all transactions and communications during the administration of the estate. Additionally, the court mandated that the executors seek approval from the court for any future gifts or deductions of costs. The court also appointed a professional administrator to oversee the remaining administration of the estate to ensure that it was conducted efficiently and in accordance with the law. This decision underscored the importance of executors adhering to their fiduciary duties and the court's role in holding them accountable when necessary.

Orders