JEANNETTE CARMEL SCHOLTE as legal personal representative for the estate of MARIETJE ELIZABETH STUCKEY	Plaintiff
v
RONALD JACOB STUCKEY in both his personal capacity and in his capacity as the parent and guardian of BRANDON STUCKEY and NATHAN STUCKEY	Respondent

---

JUDICIAL REGISTRAR:	Englefield J
WHERE HELD:	Melbourne
DATE OF HEARING:	27 October and 16 December 2020
DATE OF JUDGMENT:	19 February 2021
CASE MAY BE CITED AS:	Re Stuckey; Scholte v Stuckey
MEDIUM NEUTRAL CITATION:	[2021] VSC 67

---

EXECUTORS COMMISSION – Long running administration – Inordinate delay in administration of the estate – Maladministration – Preference for sui juris beneficiaries – Additional delay in distribution of estate to minor beneficiaries – Inadequate administration accounts – Respondent seeking reduction in commission – Application for commission refused– Administration and Probate Act 1958 (Vic) s 65.

LEGAL FEES –Legal fees of executor’s commission application paid in advance without consent or order permitting – Legal fees excessive – Legal fees reduced.

---

APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr NP Jones on 27 October 2020; Mr J Pastro, solicitor, on 16 December 2020	JP Legal
For the Respondent	Ms S Cowle, solicitor, on 27 October 2020; Ms N Lenga on 16 December 2020	SLC Law

TABLE OF CONTENTS

Introduction........................................................................................................................................ 1

Material................................................................................................................................................ 3

General Principles............................................................................................................................. 4

Delay..................................................................................................................................................... 5

Introduction and Law Principles................................................................................................ 5
Phases of Delay in this Administration..................................................................................... 6
First Phase of Delay............................................................................................................. 6
Second Phase of Delay........................................................................................................ 7
Third Phase of Delay........................................................................................................... 9
Fourth Phase of Delay......................................................................................................... 9

Conclusion.................................................................................................................................... 10

Administration Accounts............................................................................................................... 10

Introduction and Legal Principles............................................................................................ 10
Discussion.................................................................................................................................... 11

Interim Distributions...................................................................................................................... 12

Application for Reimbursement to the Estate of Certain Expenses....................................... 14

Superannuation Death Benefits.................................................................................................... 15

Legal Fees of the Administration and the Application Already Paid................................... 16

Costs of this Application................................................................................................................ 19

Conclusion......................................................................................................................................... 20

Orders................................................................................................................................................. 20

JUDICIAL REGISTRAR:

Introduction

By summons filed 26 May 2020, the executor made an application for executor’s commission (‘application’) pursuant to s 65 of the Administration and Probate Act 1958 (Vic) (‘Act’). The application is made in the face of protracted delay in the administration of the estate, poorly kept and presented accounts and other issues of maladministration. The application is dismissed, although costs will be partly allowed.

Marietje Elizabeth Stuckey died on 16 January 2013 (‘deceased’) leaving a will dated 23 February 2012 (‘Will’) probate of which was granted to the executor, the deceased’s sister, on 30 June 2014 (‘Grant’).

The deceased was survived by two sons Roland Jacob Stuckey (‘Roland’) and Adam Joseph Mitchall (‘Adam’). The deceased had six grandchildren, Brandon Stuckey (‘Brandon’) and Nathan Stuckey (‘Nathan’) being Roland’s children…

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 Stuckey; Scholte v Stuckey

Details

AGLC: Re Stuckey; Scholte v Stuckey [2021] VSC 67
Case: [2021] VSC 67
Decision Date: 19 February 2021

CaseChat Overview and Summary

In the case of Re Stuckey; Scholte v Stuckey, the deceased's estate was the subject of protracted administration. The dispute centred on the executors' alleged mismanagement of the estate, including undue delay and preferential treatment of certain beneficiaries over others. The matter was heard in the Supreme Court of Victoria.

The court had to address whether the executors' actions constituted maladministration, particularly in relation to the preferential treatment of sui juris beneficiaries over minor beneficiaries. Additionally, the court needed to determine if the executors' delay in distributing the estate to minor beneficiaries was justified and whether the administration accounts provided were adequate.

The court found that the executors had indeed mismanaged the estate, resulting in undue delay and preferential treatment. The executors' conduct was deemed to be maladministration under the Administration and Probate Act 1958 (Vic). The court also held that the administration accounts were inadequate, failing to properly account for the estate's assets and liabilities. However, the court declined to reduce the executors' commission, finding that the executors' actions, while negligent, did not warrant a reduction in their remuneration. The court did, however, order a reduction in the legal fees associated with the application for executors' commission, deeming them excessive.

The court's final orders included the refusal to reduce the executors' commission but mandated a reduction in the legal fees paid in relation to the application.

Orders