Spence v Spence [2003] NSWSC 1232

Spence v Spence [2003] NSWSC 1232

Although the Court had discretion under s86(1) to allow a lump sum, this was a continuing trust account and the usual practice was to allow commission by percentage on income rather than a lump sum. A lump sum based on hours spent would risk imposing an unjustified burden on the infant beneficiaries, especially when professional and other fees were also payable. The Deputy Registrar's allowance of 8 per cent on income collections was therefore appropriate and was confirmed.

Jurisdiction
Australia
Judgment Date
08 December 2003
Procedural Posture
Probate Application Concerning Executor's Commission / Review of a Deputy Registrar's Decision
Outcome
Decision of Deputy Registrar confirmed; notice of motion dismissed; no order as to costs.
Legal Topics
["executors' Commission" 'continuing Accounts' 'percentage Rate as Opposed to Lump Sum' 'wills Probate and Administration Act 1898 S86(1)']
['probate' 'equity' 'trusts and Estates'] ["executors' Commission" 'continuing Accounts' 'percentage Rate as Opposed to Lump Sum' 'wills Probate and Administration Act 1898 S86(1)']

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Procedural Posture

Probate Application Concerning Executor's Commission / Review of a Deputy Registrar's Decision

Legal Issues

  1. 1 ["Whether an executor's commission on continuing accounts should be allowed as a lump sum rather than as a percentage rate on income." "Whether the Deputy Registrar's allowance of commission at 8 per cent on income collections should be confirmed."]

Ratio Decidendi

Although the Court had discretion under s86(1) to allow a lump sum, this was a continuing trust account and the usual practice was to allow commission by percentage on income rather than a lump sum. A lump sum based on hours spent would risk imposing an unjustified burden on the infant beneficiaries, especially when professional and other fees were also payable. The Deputy Registrar's allowance of 8 per cent on income collections was therefore appropriate and was confirmed.

Court Disposition

Decision of Deputy Registrar confirmed; notice of motion dismissed; no order as to costs.

Orders

  • ['The decision under review is confirmed.' 'The notice of motion is dismissed.' 'No order as to costs.' 'The exhibits can be returned.']