ACKERMANN -v- ACKERMANN [2025] WASC 541 (17 December 2025)

1. The following relevant factual background, and the context in which the Application is made, is derived from the affidavits referred to, as summarised in the outline of submissions.
2. As noted, Ms George died in California on 31 August 2020. Her husband, Bernard Anthony George, predeceased her.
3. On 22 February 2021, letters testamentary were issued to Ms Ackermann by the Supreme Court of California, County of Los Angeles, appointing her as executor named in the 2020 Will.
4. Following the grant of letters testamentary to Ms Ackermann, on about 4 May 2021 a will executed by Ms George dated 2 November 2008 was located in a property owned by her in East Perth (2008 Will). The 2008 Will had been prepared by Peter Kyle of Kyle & Company and appointed him as executor of the will and trustee of Ms George's Australian estate, if Ms George's husband did not accept such appointment or predeceased her.
5. By the 2008 Will, Ms George left the whole of her Australian estate after payment of debts, testamentary expenses and duties in Australia to her husband, but if he predeceased her, on trust to the Heart Foundation and Epilepsy Society of Australia for the purposes specified, in memory of her late daughter.
6. In July 2021, solicitors instructed by Ms Ackermann contacted Mr Kyle, the Heart Foundation and Epilepsy Society of Australia and provided each of them with a copy of the 2020 Will. Each of the beneficiaries under the 2008 Will responded acknowledging the revocation of the 2008 Will by the 2020 Will, and consented to probate being granted to Ms Ackermann pursuant to the 2020 Will. Mr Kyle confirmed that he did not intend to contest the application for probate of the 2020 Will.
7. An application was initially made to this court for probate of the 2020 Will in respect of the Estate in September 2021. Before that application was finalised, a further Australian will was located, which was dated 16 November 2009 (2009 Will). That will was also drafted by Mr Kyle and was to the same effect as the 2008 Will, except it appointed Ms George's cousins, Carolyn Ann Unsworth and Toni Ann Tait, as executors and trustees if her husband predeceased her.
8. A copy of the 2009 Will was sent to Ms Unsworth and Ms Tait as the executors and trustees named in the 2009 Will and to the Heart Foundation and the Epilepsy Society of Australia, as the beneficiaries named in the 2009 Will. Each of them confirmed their consent to probate being granted to Ms Ackermann pursuant to the 2020 Will and the assets of the Estate being distributed in accordance with its terms.
9. A grant of probate of the 2020 Will was issued to Ms Ackermann by this court on 22 June 2022. Both before the grant was issued and, subsequently, Ms Ackermann has acted as sole executor and in the capacity as trustee of the Trust. She has engaged Mr Damien Holcomb, a US attorney, to act on her behalf as trustee in relation to the Trust.
10. The Estate and its administration have not been straight forward. Ms Ackermann is based in the USA. In addition to the multiple wills, further work has been required due to the complexity of Ms George being a dual citizen of both Australia and the USA and holding property in both jurisdictions. The administrative demands on Ms Ackermann were exacerbated by Ms George's passing during the COVID‑19 pandemic.
11. The work undertaken by Ms Ackermann includes asset preservation and realisation, taxation compliance, estate accounting, management of testamentary instruments, and cross-jurisdictional management, as set out in Ms Waugh's affidavit.
12. Ms George's assets in Western Australia included a property located at Goderich Street, East Perth (East Perth Property), a vehicle and personal effects, dormant accounts, and unclaimed moneys, amongst other things. As Ms George had resided primarily in the USA, the East Perth Property had fallen into disrepair. It had been unoccupied since 2013 and required substantial works of both a cosmetic and substantial nature. It had to be cleared out, valued, marketed and prepared for sale with local agents.
13. Ms Ackermann has a Bachelor of Arts degree from the University of California, Los Angeles (UCLA) with a specialisation in business administration and accounting. She has a strong background in finance and governance having held significant roles as a chief financial officer and chief executive officer. Administration of the Estate has required a significant commitment of time and expertise by Ms Ackermann alongside her professional and work commitments.
14. By way of overview, as outlined in the evidence relied upon in support of her Application, Ms Ackermann has prepared and lodged overdue personal tax returns for the periods 2014 to 2021, prepared and lodged estate tax returns for the period 2021 to 2024, co-ordinated with various Australian banks to obtain records for the purposes of tax compliance and provided oversight and instruction to an Australian taxation accountant to attend to a range of tax issues for Ms George and the Estate.
15. In regard to estate accounting, Ms Ackermann prepared a statement of assets and liabilities, had oversight of a Controlled Monies Account and had oversight of payments and record-keeping for both Estate and Trust purposes.
16. As referred to, Ms Ackermann also undertook and co-ordinated inquiries with Ms George's previous solicitors in relation to earlier wills to ensure that the 2020 Will was the last testamentary instrument and was appropriate for both the Australian and USA jurisdictions.
17. Ms Ackermann has also liaised with Mr Holcomb in respect of the Trust, including the oversight of the distribution of specific gifts under the Trust, the adherence to the trust law requirements of the USA and the administration of the Australian Estate.
18. The evidence verifies that all of the gifts under the Trust have been distributed in accordance with its terms and that each beneficiary has signed an acknowledgement of receipt. The only remaining matter for administration is the residue of the Christina Louise George Trust, created under the Trust, for charitable gifts to be made. This remaining matter is to be addressed following the finalisation of the Estate.

1. Although the Application is brought pursuant to ss 92 and 98 of the Trustees Act, the issue before the court is not, in my view, an application by a trustee for directions pursuant to s 92. Rather, the applicable provision is s 98 of the Trustees Act, which provides:
   1. Trustees' remuneration

(1) The Court may, out of the property subject to any trust, allow to any person who is, or has been, a trustee thereof or to that person's personal representative such commission or percentage for that person's services as it just and reasonable.

(2) The aggregate commission or percentage allowed under subsection (1) shall not exceed 5% of the gross value of the trust property.

...

1. 'Trustee' is defined in s 6(1) of the Trustees Act to include a personal representative.
2. As Le Miere J stated in Peter Henry Atkins as Executor of the Estate of Robert Charles Godfrey v Godfrey & Ors,[1] s 98(1) confers on the court a discretion to allow an executor remuneration for their services as is just and reasonable. Section 98(2) provides that the remuneration allowed shall not exceed 5% of the gross value of the trust property, relevantly, the Estate.
3. Master Sanderson considered the relevant authorities, including Atkins, as set out in Knuckey v Knuckey.[2] I refer to the principles set out in those decisions without repeating them in detail.
4. The facts in both Atkins and Knuckey were different to those in the present case. Each concerned contested application by an executor for remuneration in which there was cross-examination of witnesses and allegations concerning the conduct of the executor.
5. In Atkins, Le Miere J stated:[3]

... The mere presence of s 98(1) in the Act indicates that it is appropriate in many instances for an executor to receive remuneration for carrying out their obligations. It may be that in times gone by there were more people with the leisure and resources to take on unremunerated trusteeships. However, in contemporary times the payment of executors' remuneration is conducive to the good administration of estates. An executor is more likely to be able to devote the time and resources to the proper administration of an estate if he or she is remunerated for doing so.

1. His Honour also noted that where there was misconduct by an executor in execution of their duties, commission could be refused.[4]
2. There is nothing in the evidence before me to suggest that any aspect of Ms Ackermann's conduct in undertaking her duties as executor of the Estate would disentitle her to reasonable remuneration for the work she has done over and above what would ordinarily be expected.
3. As Master Sanderson stated in Knuckey,[5] Le Miere J's decision in Atkins makes it plain that each case must be determined on its merits. Remuneration may not be appropriate in every case. It will depend on the circumstances, the nature of the estate, its administration, the work required to be undertaken and the time the personal representative has had to devote to the administration of the estate.
4. In Atkins, Le Miere J stated that the proper approach required by s 98(1) of the Trustees Act is to form an overall assessment of what remuneration is reasonable in the circumstances.[6]
5. The amount of any commission or remuneration is ultimately a matter for the court's discretion having regard to the statutory cap of 5% under s 98(2) of the Trustees Act.

1. Ms Ackermann seeks remuneration calculated at the rate of 4% of the gross value of the Estate, which amounts to $192,624.51.
2. It is submitted that the circumstances of this case and the additional time and services Ms Ackermann has provided are above and beyond those that would normally be expected in the administration of an estate due to several complex circumstances, as have been outlined. I accept those submissions.
3. Having considered the evidence and submissions, I am satisfied that it is appropriate that I exercise my discretion in this case to make an order that Ms Ackermann receive a commission by way of remuneration for her services as executor of the Estate.
4. The gross value of the Estate is $4,815,612.75, as set out in the Accounts of the Executor dated 2 June 2025 (Accounts), filed in PRO 6200 of 2021 on 11 June 2025. Having regard to the time spent by Ms Ackermann and the complexities involved in administering the Estate she should, in my view, be allowed a commission by way of remuneration for her services as executor. There is no evidence that Ms Ackermann has conducted herself in any way that would disallow her receiving remuneration for her services.
5. I note that Ms Ackermann has engaged lawyers who have provided advice and assistance in respect of the distribution of specific gifts under the Trust and to ensure adherence to USA trust law requirements and the administration of the Estate. She has also had the assistance of Western Australian lawyers, which she is entitled to do.
6. The lawyers' fees incurred come at an expense to the Estate. That is not a criticism, and there is no suggestion that incurring those legal fees was unreasonable, but it is a matter I take into account. Given the cross‑jurisdictional management required by the administration of the Estate, and the issues arising, it was prudent and entirely reasonable to obtain legal advice and assistance. Details of the legal fees, which have been paid or will be payable by the Estate, are included in the Accounts.
7. I accept that Ms Ackermann has also incurred a significant amount of her own time in administering the Estate which, given her financial knowledge and experience, will have made a significant contribution to the efficient administration of the Estate.
8. In the circumstances, in my view, the amount of $192,624.51 sought is reasonable, by way of remuneration for Ms Ackermann's services as executor of the Estate, given the complexity, the time involved and work undertaken by her. This equates to 4% of the gross value of the Estate.
9. I am also satisfied that it is appropriate to make an order that the costs of the Application be treated as part of the costs of the administration and be paid out of the Estate.

1. I will therefore make orders in the following terms:
   1. Pursuant to s 98 of the Trustees Act 1962 (WA), the plaintiff be paid a commission as remuneration for her services as executor in administering the estate of the late Patricia Myra George (Estate) in the amount to $192,624.51, such sum to be paid to the plaintiff from the Estate.
   2. The plaintiff's costs of the Application are to be paid by the Estate pursuant to s 97 of the Trustees Act 1962 (WA).

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

[1] Peter Henry Atkins as Executor of the Estate of Robert Charles Godfrey v Godfrey & Ors [2006] WASC 83 (Atkins) (Le Meire J).

[2] Knuckey v Knuckey [2022] WASC 157 (Knuckey) [9] ‑ [17].