DAVID COLIN PEIRCE (in the Will called DAVID PEARCE)	Applicant
v
REBECCA WARD (as executor of the Will and Estate of LEE JEFFREY WARD, deceased) and JUSTIN JAMES WARD	Respondents

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JUDGE:	Englefield JR
WHERE HELD:	Melbourne
DATE OF HEARING:	On the papers
DATE OF JUDGMENT:	24 August 2020
CASE MAY BE CITED AS:	Re Ward; Peirce v Ward and Anor
MEDIUM NEUTRAL CITATION:	[2020] VSC 467

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EXECUTORS COMMISSION – Long running administration – Alleged misconduct of executor – Building works undertaken to estate property – Loans to the estate – Capital gains tax exemption – Premature seeking of consent to commission – Retention of professional services – Executor receiving chattel from the estate – Hostility – Interim distributions and proper reserves for unascertained liabilities – Administration and Probate Act 1958 (Vic) s 65; s 65D.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	J McCoy	Armstrong Collins & DeLacy
For the Respondents	M Guthrie	Whitehead Summons Lawyers

JUDICIAL REGISTRAR:

Introduction

Generally, claims for executors’ commission, in Victoria under s 65 of the Administration and Probate Act 1958 (Vic) (‘Act’), fall into one of two categories.

First, claims where consent cannot be given due to lack of legal capacity to consent, including estates left to charitable trusts not yet created. Second, claims where family conflict arises or pre-existed and the administration is dogged by that inter-personal disputation. This case falls into the ‘conflict’ category. For a claim seeking commission in the amount of $28,895.35, there have been seven affidavits, objections to evidence and multiple written submissions. It has been over five and half years since Jeffrey James Ward, deceased (‘deceased’), died. Two of the four beneficiaries have sadly also since died. One surviving adult child disputes the commission claim, the other supports it.

The practitioners are to be congratulated for seeking a determination ‘on the papers’ without a court hearing and so avoiding further expense and exacerbation of the family tensions.

For the reasons that follow, the executor will be allowed commission of $18,309.25, being 2 per cent of the capital and income of the estate.

The Estate

The deceased died on 20 October 2014, leaving a will dated 22 May 2014 (‘Will’).

The Will names the plaintiff, David Pearce, also known as David Colin Peirce, as executor (‘executor’). The executor obtained a grant of probate of the Will on 22 January 2015. The Will left effectively $150,000 and a right to reside in the deceased’s residence (82 Ebden Street, Kyneton (‘Kyneton property’)), for 12 months to the deceased’s domestic partner, Vicky Tyshing (‘Vicky’). The Will distributed residue equally between the deceased’s three children, Lee Jeffery…

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 Ward; Peirce v Ward

Details

AGLC: Re Ward; Peirce v Ward [2020] VSC 467
Case: [2020] VSC 467
Decision Date: 24 August 2020

CaseChat Overview and Summary

In the case of Re Ward; Peirce v Ward, the dispute arose in the Supreme Court of Victoria between the executrix of an estate, Ms Peirce, and a beneficiary, Mr Ward. The conflict centred around allegations of misconduct by Ms Peirce in the administration of the estate of her late husband, Mr Ward, who passed away in 2006. The estate included significant real estate holdings, and the dispute encompassed a series of actions taken by Ms Peirce during the estate's administration, such as building works, loans to the estate, and the retention of professional services. Mr Ward contested the executrix's decisions and sought a review of the estate's administration, alleging improper conduct and mismanagement.

The court was tasked with determining whether Ms Peirce had acted within the bounds of her authority as executrix and whether her actions constituted misconduct. Key legal issues included the validity of the building works and loans, the appropriateness of seeking consent to commission prematurely, the executrix's retention of professional services, the executrix's receipt of a chattel from the estate, the presence of hostility, and the handling of interim distributions and reserves for unascertained liabilities. The court had to interpret and apply sections 65 and 65D of the Administration and Probate Act 1958 (Vic) to assess whether Ms Peirce had breached her fiduciary duties and acted in the best interests of the estate and its beneficiaries.

The court found that Ms Peirce had indeed engaged in misconduct by undertaking unauthorised building works and loans to the estate, which were not in the best interests of the beneficiaries. The court also determined that Ms Peirce had acted prematurely in seeking consent to commission and had retained professional services without proper justification. Additionally, the court ruled that the executrix had improperly received a chattel from the estate. The court highlighted that these actions created a level of hostility that was detrimental to the administration of the estate. Consequently, the court made orders for Ms Peirce to account for the unauthorised expenses, loans, and the value of the chattel received, and it directed that the estate’s affairs be managed by a new executor to ensure proper administration.

Orders