The Estate of Helen Manning Shave [2012] NSWSC 1428

The Estate of Helen Manning Shave [2012] NSWSC 1428

The court found that both executors were at fault, but Brown's conduct in relation to seeking double payment for executorial work and failure to recognise conflict of interests justified requiring him to reimburse the estate for 65% of the moderated costs allowed to Gillian. Both executors were allowed commission, with Brown's allowance for assets transferred to Gillian reduced to reflect his contribution to difficulties in administration. Costs of passing accounts and these proceedings were to be paid out of the estate; costs of objections to accounts were to be borne by Brown.

Parties
First Plaintiff: Gillian Barbara Shave; Second Plaintiff: David William Brown; Defendant: Charles Edward Bradley Shave
Jurisdiction
Australia
Judgment Date
23 November 2012
Procedural Posture
Probate Dispute / Judgment After Hearing; Determination of Passing of Accounts, Moderation of Costs, and Commission Claim
Outcome
Orders made passing accounts, requiring Brown to reimburse the estate for part of costs to Gillian, awarding commission to executors with reduction for Brown, apportioning costs between parties and out of estate as detailed.
Legal Topics
Executor Commission, Costs Moderation, Executor Duties, Disputes Between Executors, Administration of Estate
Wills and Estates Probate Civil Procedure Executor Commission Costs Moderation Executor Duties Disputes Between Executors Administration of Estate

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Parties

Gillian Barbara Shave

First Plaintiff

David William Brown

Second Plaintiff

Charles Edward Bradley Shave

Defendant

Procedural Posture

Probate Dispute / Judgment After Hearing; Determination of Passing of Accounts, Moderation of Costs, and Commission Claim

Legal Issues

  1. 1 Whether solicitor executor should indemnify estate for moderated costs allowed to co-executor
  2. 2 How commission should be apportioned between executors, particularly in light of alleged breaches of duty and conflicted conduct
  3. 3 Proper allocation and moderation of estate administration costs between the parties

Ratio Decidendi

The court found that both executors were at fault, but Brown's conduct in relation to seeking double payment for executorial work and failure to recognise conflict of interests justified requiring him to reimburse the estate for 65% of the moderated costs allowed to Gillian. Both executors were allowed commission, with Brown's allowance for assets transferred to Gillian reduced to reflect his contribution to difficulties in administration. Costs of passing accounts and these proceedings were to be paid out of the estate; costs of objections to accounts were to be borne by Brown.

Court Disposition

Orders made passing accounts, requiring Brown to reimburse the estate for part of costs to Gillian, awarding commission to executors with reduction for Brown, apportioning costs between parties and out of estate as detailed.

Orders

  • Accounts and supplementary accounts passed for the estate for the period 15 April 2008 to 31 August 2012.
  • Second plaintiff (Brown) to reimburse the estate $32,843.78, 65% of moderated costs allowed to first plaintiff (Gillian).