Ford v Princehorn; Estate of Ford [2012] NSWSC 1165

Ford v Princehorn; Estate of Ford [2012] NSWSC 1165

The executor was not justified in withholding a partial distribution of the estate pending resolution of the commission issue. In continuing to press for agreement and delaying the distribution, the executor acted in substance for his own benefit rather than for the estate's. Therefore, the defendant is not entitled to be indemnified out of the estate in respect of the costs of proceedings or his liability for the plaintiffs' costs.

Parties
Plaintiff: Ian James Ford; Plaintiff: Stewart John Ford; Plaintiff: Narelle Winnetta Mary Lauer; Plaintiff: Beverley Ann Fewins; Plaintiff: Winnetta Mavis Ford; Plaintiff: Susan Mary Stanley; Plaintiff: Craig James Ford; Plaintiff: Douglas Alan Ford; Defendant: Geoffrey Alan Princehorn
Jurisdiction
Australia
Judgment Date
24 September 2012
Procedural Posture
Probate / Estate Administration / Post Hearing, Costs and Orders
Outcome
Orders made as sought by plaintiffs; costs awarded to plaintiffs; no indemnity to executor out of estate for costs.
Legal Topics
Executor's Duties, Commission Claim, Costs, Indemnity
Succession Law Equity Civil Procedure Executor's Duties Commission Claim Costs Indemnity

Case Brief

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Parties

Ian James Ford

Plaintiff

Stewart John Ford

Plaintiff

Narelle Winnetta Mary Lauer

Plaintiff

Beverley Ann Fewins

Plaintiff

Winnetta Mavis Ford

Plaintiff

Susan Mary Stanley

Plaintiff

Craig James Ford

Plaintiff

Douglas Alan Ford

Plaintiff

Geoffrey Alan Princehorn

Defendant

Procedural Posture

Probate / Estate Administration / Post Hearing, Costs and Orders

Legal Issues

  1. 1 Whether the executor was justified in withholding partial distribution pending resolution of commission claim
  2. 2 Whether executor is entitled to be indemnified out of estate for costs incurred in proceedings
  3. 3 Whether costs should follow the event in probate disputes

Ratio Decidendi

The executor was not justified in withholding a partial distribution of the estate pending resolution of the commission issue. In continuing to press for agreement and delaying the distribution, the executor acted in substance for his own benefit rather than for the estate's. Therefore, the defendant is not entitled to be indemnified out of the estate in respect of the costs of proceedings or his liability for the plaintiffs' costs.

Court Disposition

Orders made as sought by plaintiffs; costs awarded to plaintiffs; no indemnity to executor out of estate for costs.

Orders

  • Within 28 days the defendant must file accounts and a summons for passing of accounts and any claim for commission in respect of the estate of Sarah Emmaline Ford.
  • The defendant must pay the plaintiffs' costs of proceedings.