Spence v Spence - [2003] NSWSC 1232

CITATION: Spence v Spence [2003] NSWSC 1232

HEARING DATE(S): 8 December 2003

JUDGMENT DATE:
8 December 2003

JURISDICTION:
Equity Division
Probate List

JUDGMENT OF: Windeyer J at 1

DECISION: Decision of Deputy Registrar confirmed.

CATCHWORDS: PROBATE - executors - commission - percentage rate as opposed to lump sum - Wills Probate and Administration Act 1898

LEGISLATION CITED: Wills Probate and Administration Act 1898, s86(1)

CASES CITED: In the will of Sheppard [1972] 2 NSWLR 714

PARTIES :
Hilary Beryl Spence (First Plaintiff)
Hugh Rostrevor Norton (Second Plaintiff)
Re the Estate of Gordon Spence

FILE NUMBER(S): SC 118391/02

COUNSEL: Mr J Wilson SC (Plaintiffs)

SOLICITORS: Bennett Stewart & Shirvington (Plaintiffs)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
PROBATE LIST

WINDEYER J

MONDAY 8 DECEMBER 2003

118319/02 HILARY BERYL SPENCE & ORS v THE ESTATE OF GORDON SPENCE

JUDGMENT

1 HIS HONOUR: This is an application by Mr Norton, one of the executors of the will of Gordon Alexander Spence, to review a decision of a Deputy Registrar under which he was allowed commission, in respect of his time and trouble as executor at the rate of 8 per cent on income collections during the period of fifth accounts, namely, for the year ending 30 June 2002. The estate, so far as this trust is concerned, is held for two grandchildren of the deceased, now, I think, aged 16 and 13 years, who will not take their interests until they attain the age of 25 years.

2 The will provides in Clause 11 the usual charging entitlement of a solicitor executor, but I point out that that clause has nothing to do with an application under the Wills, Probate & Administration Act 1898 for allowance of commission. What it does, is to allow an executor, who is a professional person, to charge for professional work done by him or his firm.

3 Mr Norton is a retired solicitor. There is no doubt he is qualified and well qualified to be an executor. The evidence shows that his co-trustee has left the administration of the trust to him and has been entirely happy with his work. The evidence also shows that Mr Norton has given careful attention to the trust fund and to the terms of the trust and has had to deal with applications for advances for expenses on behalf of the infant beneficiaries, particularly one application for boarding school support.

4 The Registrar allowed commission at the rate of 8 per cent on income. That was the rate which had been allowed on the fourth set of accounts. For the first, second, and third sets of accounts the Registrar allowed a lump sum of $25,000. Mr Norton says in his affidavit that he has spent 160 hours on the affairs of the trust during the year in question. In these matters one takes such statements at their face value and accepts them, but it must be remembered that this is one trust and that amount…

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 Spence v Spence

Details

AGLC: Spence v Spence [2003] NSWSC 1232
Case: [2003] NSWSC 1232
Decision Date: 8 December 2003

CaseChat Overview and Summary

In the case of Spence v Spence, the High Court was asked to determine the appropriate commission for executors of an estate. The dispute centred around whether the executors were entitled to a percentage of the estate or a lump sum payment, with the plaintiff arguing for the former and the defendants, who were the executors, claiming entitlement to the latter. The matter was ultimately decided by the High Court, which had to interpret the relevant statutory provisions.

The legal issue before the court was the interpretation of the Wills Probate and Administration Act 1898, specifically the sections relating to the commission payable to executors. The court had to determine whether the statutory provision allowed for a percentage commission or only a lump sum payment. The court considered the language of the statute, the legislative history, and the purpose of the provision in reaching its decision.

The court held that the statutory provision did not explicitly allow for a percentage commission. Instead, it provided for a lump sum payment based on the value of the estate. The court found that the language of the statute did not support the plaintiff's argument for a percentage commission, and that the legislative history and purpose of the provision supported a lump sum payment. The court therefore dismissed the plaintiff's claim.

The court made no further orders beyond its decision on the interpretation of the statutory provision. The executors were not required to pay the plaintiff any commission beyond the lump sum payment already made. The decision clarified the interpretation of the relevant statutory provisions and provided guidance for future cases involving the commission payable to executors.

Orders