Re White; Tweedie v Attorney-General - [2003] VSC 433

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IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE
PROBATE JURISDICTION

No. 54660

IN THE MATTER OF the Will and Estate of JOSEPH WHITE, deceased

IAN FIELDING TWEEDIE and ORS	Applicants
v
THE ATTORNEY-GENERAL FOR THE STATE OF VICTORIA	Respondent

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JUDGE:	KELLAM J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	4 September and 30 October 2003
DATE OF JUDGMENT:	30 October 2003
CASE MAY BE CITED AS:	Re Joe White, deceased
MEDIUM NEUTRAL CITATION:	[2003] VSC 433

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ADMINISTRATION AND PROBATE – Trustees – Application for increase in commission by trustees – Charitable trust involving substantial assets administered by trustees for annual remuneration – Remuneration of trustees fixed by will £250 per year – Whether the Court has power to increase remuneration of trustees where the testator has provided for the remuneration of the trustees by will – Remuneration increased to 3.5% of annual net income of the trust – Role of Attorney‑General in proceedings involving charitable trusts – Administration and Probate Act 1958 s.65.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P.P. Bravender-Coyle	McKean and Park
For the Respondent	Mr R.E. Cook	Victorian Government Solicitor

HIS HONOUR:

This is an application brought by summons dated 24 April 2003 whereby the applicants, who are the trustees of the estate of Joseph White, deceased, seek an order that the remuneration allowed to the applicants under the will of the deceased be increased.

Background

The deceased died on 30 June 1959 leaving a will and three codicils, probate of which was granted on 28 October 1959. Probate was granted to the brother and to a nephew of the deceased, and to three other persons who were the executors and trustees named in the will. All of the original executors and trustees are now deceased, the last survivor of these having died in March this year.

By his will and codicils, the deceased, after giving certain specific legacies and bequests, and subject to the payment of his debts and testamentary and other expenses, gave the residue of his estate to his trustees to hold as a separate fund to be called the “Joe White Bequest” (“the Bequest”) and to stand possessed of the income derived from it upon trust to pay certain specified annuities which were set out in clause 5 of his will and subject to the trusts in relation to such annuities:
“(a)to divide such income in each year amongst such public hospitals, public benevolent institutions or public benevolent societies in Victoria (being institutions or societies which are in law charitable or the purposes of which are in law charitable) and in such proportions as my trustees shall in each year or from time to time determine, or
(b)to apply such income in each year to or for such religious or public scientific or public educational purposes in Victoria (being religious or public scientific or public educational purposes which are charitable purposes in law) and in such proportions as my trustees shall in each year or from time…

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.

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Details

Case: [2003] VSC 433
Decision Date: 30 October 2003

CaseChat Overview and Summary

The case of Re White; Tweedie v Attorney-General involved an application by trustees to increase their commission from a charitable trust. The trustees, who were administering a substantial estate left for charitable purposes, sought an increase in their annual remuneration, which had been fixed by the will at £250 per year. The primary legal issue the court had to decide was whether it had the power to increase the remuneration of the trustees when the testator had already specified the trustees' remuneration by will. The court also needed to consider the appropriate level of remuneration for the trustees, given the size and nature of the trust assets.

The court examined the relevant statutory provisions, particularly section 65 of the Administration and Probate Act 1958, which grants the court discretion to adjust trustees' remuneration in cases where the original terms are deemed inadequate. The court found that while the testator had set the initial remuneration, the trustees' application was not an attempt to alter the will but rather to seek a review of the adequacy of the remuneration in light of the trust's financial situation. The court concluded that it had the authority to increase the trustees' remuneration to a level that would be commensurate with their responsibilities, which in this case was set at 3.5% of the annual net income of the trust. Additionally, the court addressed the role of the Attorney-General in proceedings involving charitable trusts, noting that while the Attorney-General has a duty to protect the interests of the charitable beneficiaries, the trustees' application was not contested, and thus no further intervention was required.

The court's decision affirmed the trustees' right to seek an adjustment to their remuneration and set a new rate that reflected the trust's financial capacity to support the trustees' work. The court's ruling underscored the importance of ensuring that trustees receive adequate compensation for their duties, particularly in the administration of significant charitable trusts. The final orders of the court increased the trustees' remuneration to 3.5% of the annual net income of the trust, effective from the date of the judgment.

Orders