| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
IN ITS PROBATE JURISDICTION
TRUSTS, EQUITY AND PROBATE LIST
S PRB 2015 00524
IN THE MATTER of the Will and Estate of JEFFREY JAMES WARD, deceased
- and –
IN THE MATTER of Section 65 of the Administration and Probate Act 1958
| 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…
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- AGLC
- Re Ward; Peirce v Ward [2020] VSC 467
- Case
- [2020] VSC 467
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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