Re Estate Schutt

Before the Court is a notice of motion filed on 6 June 2023 by the executor of a deceased estate seeking (pursuant to rule 49.19 of the Uniform Civil Procedure Rules 2005 NSW) a review of a decision made by a Senior Deputy Registrar on 10 May 2023 to disallow a claim for $56,800 made by the executor for “management services” said to have been provided by him to the deceased during her lifetime.

The Registrar’s decision was made in the course of dealing with a notice of motion for the passing of accounts filed by the executor on 6 October 2022, and amended on 10 May 2023, in response to a notice of motion filed (on 10 May 2022) by one of several residuary beneficiaries of the estate of the deceased seeking an order that the executor file and pass his accounts.

The effect of the amendment to the executor’s notice of motion was to allow him to claim commission (under section 86 of the Probate and Administration Act 1898 NSW) despite earlier (in an affidavit sworn on 22 September 2022) having disclaimed any intention to do so.

In accordance with usual practice, an application for review of the Registrar’s decision having been made, she provided to the Court and the parties a “Report to Court” (dated 18 July 2023) which provided formal reasons for her decision.

As the Registrar’s Report explains, although she disallowed $56,800 of the sum (of $64,400) claimed by the executor for “management fees”, she allowed him commission of $15,000.

No challenge has been made to the Registrar’s decision to allow commission in favour of the executor.

Nevertheless, the Registrar’s Report includes the following statement:

Sylvia Yvonne Schutt (“the deceased”), a widow, died on 11 January 2021 aged 99 years, leaving a will dated 7 April 2017 probate of which was granted to her son William on 7 May 2021.

The will appointed William as the deceased’s sole executor, with another of her sons nominated as a substitute executor.

The deceased was predeceased by her husband (who died in 1994) and a son (who died in 2001) but she was survived by her four remaining adult children and the widow of the son who had died before her.

A statement in the form of a certificate on the front page of the will records that the will was “prepared by” William “in consultation with” the deceased and “reviewed by” a named solicitor. The address of the deceased is stated in the will to have been that of a nursing home. Her execution of the will was witnessed by two persons each of whom was identified, by occupation, as a “hairdresser”.

The scheme of the will is encapsulated in the following extract from clause 3:

The evidence before the Registrar left her in doubt about the nature and extent of any management services provided by the executor to the deceased during her lifetime, a doubt accompanied by her observation of deep disharmony within the deceased’s family during the last decades of her life.

The deceased died at an advanced age. Her executor’s assumption of “management” responsibilities was the subject of controversies which, on the materials presently before the Court, cannot be resolved.

The inventory of property of the deceased attached to the executor’s grant of probate discloses that at the time of her death the deceased had an estate worth approximately $1.6 million, substantially all of which (other than a refund of her nursing home bond) took the form of shares in public companies or the like.

At the direction of the Court, notice of the executor’s application for review was served on the deceased’s residuary beneficiaries not otherwise involved in the proceedings. None chose to appear before the Court.

A review of a Registrar’s decision under rule 49.19 (which brings into play, rule 49.20) of the Uniform Civil Procedure Rules 2005 does not, like an appeal from a judge to the Court of Appeal, require demonstration of error on the part of the Registrar. It is not restricted to a reconsideration of the material before the Registrar but it is nevertheless customary that, on a review, the parties are restricted to the material before the Registrar unless the interests of justice dictate otherwise: Tomko v Palasty (No 2) (2007) 71 NSWLR 61 at [6]-[10]; Lawteal Pty Ltd v Ofo [2005] NSWSC 984 at [19]-[21].

In these proceedings, the executor (over the objection of the respondent beneficiary) sought to read, on review, an affidavit intended to overcome a criticism of the Registrar directed to the absence of copies of tax returns of the deceased.

In my opinion, nothing turns on the provision of those tax returns on an analysis of the Registrar’s reasoning because, on my reading of her reasons, she had (with good reason) broader doubts about the nature of any management services provided by the executor to the deceased and his entitlement, if any, to charge management fees to the estate of the deceased.

It is common ground between the parties that the executor bears the forensic onus to persuade the Court that it should intervene upon a challenge to the Registrar’s decision.

I am not satisfied that there is any reason to intervene. The Registrar’s reasons were well considered and sound. She rightly observed that the substantial legacy allowed by the deceased in favour of the executor might reasonably be taken into account against the executor’s contention that he had an agreement with the deceased to charge her separately as if she were receiving a commercial service.

For these reasons, I order that the executor’s notice of motion filed on 6 June 2023 be dismissed.

As invited by the respondent beneficiary, I make no order as to costs, with the intention that the parties pay or bear their own costs.