THE CHARACTER OF THE COURT'S JURISDICTION TO AWARD EXECUTOR'S COMMISSION
30The history and nature of the jurisdiction of the Court (including that for which PAA s 86 provides) to allow executor's commission out of a deceased estate are authoritatively dealt with by the High Court of Australia in Nissen v Grunden (1912) 14 CLR 297 and, with an additional reference to the judgment of the Full Court of the Supreme Court of Victoria in Winter-Irving v Winter [1907] VLR 546, by Helsham J in In the Will of Sheldon [1972] 1 NSWLR 196 at 199F-201D.
31Importance attaches to the origins of the Court's jurisdiction in the Third Charter of Justice (promulgated pursuant to the Imperial Statute, 4 Geo IV c 96, known colloquially as "The New South Wales Act" of 1823), continued by SCA s 22, for several reasons.
32First, by s 10 of the New South Wales Act (reproduced in JM Bennett and AC Castles (eds), A Source Book of Australian Legal History (Law Book Co, Sydney, 1979) at pp 46-47) and by clause 14 of the Charter (reproduced in Historical Records of Australia, Series IV, Volume 1, at pp 514-516), the Court was constituted as a court of ecclesiastical jurisdiction, the source of the jurisdiction we presently know, generally, as "probate jurisdiction": JM Bennett, A History of the Supreme Court of New South Wales (Law Book Co, Sydney, 1974), pp 133, 135 and 141-142; R Hastings and G Weir, Probate Law and Practice (Law Book Co, Sydney, 2nd ed, 1948), Part 1 (pp 3-25).
33By the time of the establishment of the Court, in New South Wales, Chancery had long encroached on the jurisdiction of the Ecclesiastical Courts, in England, in relation to trusts, legacies and debts in wills: RB Outhwaite, The Rise and Fall of the England Eccesiastical Courts, 1500-1860 (Cambridge University Press, 2006), p 33, citing WJ Jones, The Elizabethan Court of Chancery (Clarendon Press, Oxford, 1967), pp 400-417; W Holdsworth, A History of English Law (7th ed, 1956), pp 458-459 and 629.
34A large factor in that encroachment was the availability in Chancery of procedures, inter alia, for the enforcement of trusts, the taking of accounts, and the determination of disputes between executors: Jones, op cit, pp 403-404, 411 and 413-417.
35By s 9 of the New South Wales Act (reproduced at p 46 of JM Bennett and AC Castles, op cit) supplemented by s 11 of the Australian Courts Act 1828 (Imp), 9 Geo 4 c 83, the Court had conferred on it the jurisdiction of the Lord Chancellor: JM Bennett, op cit, p 94 n 5; F Jordan, Chapters on Equity in New South Wales (Sydney Law School, 6th ed, 1947), pp 7-8, reproduced in Sir Frederick Jordan, Select Legal Papers (Legal Books, Sydney, 1983).
36Secondly, clause 17 of the Charter (reproduced in HRA, Series IV, Volume 1, at pp 517-518) provided, inter alia (and with emphasis added), that "... it shall be lawful for [the Supreme Court of NSW] to allow to any Executor or Administrator of the effects of any deceased person ... such Commission or percentage out of their assets as shall be just and reasonable for their pains and trouble therein....", and generally tied an allowance of executor's commission to the process of an Executor or Administrator passing his or her accounts in the course of administration of an estate.
37Thirdly, clause 17 of the Charter is a prime source of the Court's "inherent jurisdiction" to allow executor's commission, supplementing Equity's more general jurisdiction to permit a fiduciary to retain an allowance for remuneration out of assets within the fiduciary's control: Nissen v Grunden (1912) 14 CLR 297 at 305 and 315; Mayne v Jaques (1960) 101 CLR 169 at 181; Willett v Futcher (2005) 221 CLR 627 at 636 n 26 (citing In Re Freeman's Settlement Trusts (1887) 37 Ch D 148; Forster v Ridley (1864) 4 De G J & S 452; 46 ER 993 and In Re Duke of Norfolk's Settlement Trusts [1982] Ch 61); Anson v Anson [2004] NSWSC 766; 12 BPR 22,303 at [75]-[78]; Re Application of Sutherland [2004] NSWSC 798 at 299 [11] - 301 [17].
38As Sir Frederick Jordan reminds us, this jurisdiction still exists, and need not necessarily be exercised in the summary form of procedure for which PAA s 86(1) provides: F Jordan, Chapters on Equity in NSW (6th ed, 1947), p 125 note (c).
39Fourthly, the language of clause 17 is expressly reflected in the language ultimately enacted (to similar effect) in PAA s 86: Nissen v Grunden (1912) 14 CLR 297 at 305 and 315.
40Fifthly, the terms in which the Charter (including clause 17) was expressed has justified, in the Supreme Court of NSW, an approach to allowances of executor's commission that accommodates both:
(a)the "traditional" English approach (sometimes, as in Willett v Futcher (2005) 221 CLR 627 at 631 n 15, identified by reference to Robinson v Pett (1734) 3 P.Wms. 249; 24 ER1049) that the office of an executor, administrator or trustee of a deceased estate is a gratuitous one unless a contrary arrangement is made in the Will of the deceased; and
(b)by expressly authorising the Court to grant an allowance of executor's commission, the Charter's recognition that it is open to the Court, in the exercise of ordinary (not extraordinary) jurisdiction, to depart from that "traditional" English approach: Nissen v Grunden (1912) 14 CLR 297 at 304 - 305.
41In Robinson v Pett Lord Chancellor Talbot rationalised the "traditional" English approach in terms that continue (as illustrated by LI Rotman, Fiduciary Law (Thomson, Canada, 2005) at p 62)) to inform debates about whether (and, if so, in what measure) executor's commission should be allowed:
"It is an established rule that a trustee, executor or administrator, shall have no allowance for his care and trouble: the reason of which seems to be, for that on these pretences, if allowed, the trust estate might be loaded, and rendered of little value. Besides, the great difficulty there might be in settling and adjusting the quantum of such allowance, especially as one man's time may be more valuable than that of another; and there can be no hardship in this respect upon any trustee, who may choose whether he will accept the trust, or not .... But further; in the present case, the testator has by his will expressly directed what should be [an Executor's] recompense for his trouble...."
42This case is consistent with, and an early source of, a more general precept that the office of a fiduciary is a gratuitous one unless a special arrangement to the contrary is made (Macedonian Orthodox Community Church St Petka Incorporated v Bishop Petar (2008) 237 CLR 66 at 93 [69]; Anson v Anson [2004] NSWSC 766; 12 BPR 22, 303 at [75]-[76]), a proposition closely linked with underlying concerns, first, that a fiduciary is not entitled to profit from his, her or its office as a fiduciary and, secondly, a fiduciary is not allowed to put himself, herself or itself in a position where personal interest and duties of the office conflict.
43The powers of the Court to allow remuneration to executors, administrators and trustees exist as a means of granting to those fiduciaries relief, more particularly, against the rule that, generally, a fiduciary may not derive any profit or advantage from his, her or its position if not duly authorised to do so: In the Will of Shannon [1977] 1 NSWLR 210 at 214G-215D citing Dale v Inland Revenue Commissioners [1954] AC 11 at 27 and Brown v Inland Revenue Commissioners [1965] AC 244 at 256.
44Although the starting point for consideration of an application for executor's commission remains that the office of an executor, administrator or trustee is, prima facie, a gratuitous one, the jurisdiction to award executor's commission (upon an exercise of inherent jurisdiction, derived from the Charter of Justice, or under PAA s 86) requires a preparedness on the part of the Court to move beyond that point and to do so by reference to the particular circumstances of each case.
45An allowance of executor's commission is customarily expressed in the form of a percentage of entries in estate accounts (as a percentage of income collections, a percentage of capital realisations and/or a percentage of the sworn value of assets transferred in specie during the period covered by the accounts) vouched as correct by the Court. Consistently with this, as demonstrated, the Probate Rules require that a certificate issued on the passing of an executor's accounts include, when commission is allowed, information about these types of transaction: formerly SCR Pt 78 r 81, now SCR Pt 78 r 84.
46This approach traditionally breaks down the task of assessing the quantum of remuneration, in a case such as the present one, into three categories of dealing with estate property (capital realisations, income collections and asset transfers in specie), each one of which, experience suggests, may have its own dynamic in a factual setting. However, these categories do not, in themselves, govern the performance of the Court's task. They provide assistance in the performance of that task similar to a set of procedural guidelines. By reference to PAA s 86(1), the task remains one of assessment of an allowance that is "just and reasonable" for the pains and trouble taken by an executor who applies for commission.
47The jurisdiction of the Court extends, in an appropriate case, to the making of an allowance of remuneration as a lump sum unrelated to a percentage calculation: Spence v Spence [2003] NSWSC 1232 at [5]-[10]; Watters, Re Estate of Dibbs [2006] NSWSC 1277 at [15]-[17]; Phillips, Re Estate of Joel [2007] NSWSC 639 at [14] and [18]; Estate of Edward Simshauser, deceased (NSW Supreme Court, Holland J, 24 November 1978, unreported). Cf, Hawkins v Barkley-Brown [2010] NSWSC 48 at [28]-38]. Each case depends on its own facts. An award of lump sum remuneration is assessed by reference to local conditions (including the cost of services) affecting the work undertaken, not some remote, abstract schedule of prices: In Re Universal Distributing Company Limited (In Liq) (1933) 48 CLR 171 at 176. A mixed order, allowing some by a percentage calculation and some by a lump sum, may be appropriate: eg, Foster v Spencer [1996] 2 All ER 672 at 678j-679b and 681b-682h.
48The quantum of remuneration that may be "allowed" is to be determined, in the particular circumstances of each case, by reference to a standard governed by what is "just and reasonable" for an executor's "pains and trouble" in administration of an estate.
49Care needs to be taken, in each case, to bear in mind that the process of decision-making leading to an allowance of executor's commission is intended to be a summary one. Were the position otherwise, the administration of estates could be frustrated by collateral litigation.
50The jurisdiction to allow executor's commission does not shift the primary focus of the Court away from the task of ensuring that there is due administration of an estate, having regard to the interests of the estate, beneficiaries and any known testamentary intentions of the deceased.
51Quantification of an allowance for executor's commission is notoriously difficult. The customary practice of allowing commission as a percentage of entries in estate accounts reflects an aspiration for a standard that can be applied summarily, as an objective means of allowing, and confining, remuneration within a reasonable range. It is not applied without reference to the reasonableness or otherwise of the total amount of remuneration allowed in the particular case. On the contrary, a correct decision making process requires the Court "to put a value upon the pains and troubles of the executor with reference to the particular accounts": In the Will of Sheppard [1972] 2 NSWLR 714 at 721. Essentially, what has to be considered, on the facts of the particular case, is the work done by the executor and what is a reasonable allowance for that work: Watters, Re Estate of Dibbs [2006] NSWSC 1277 at [16].
52Different minds may approach that task differently. Methodology varies. Some minds tackle the process of quantification by making an initial assessment based upon percentages before cross checking it against a lump sum assessment: eg, Spence v Spence [2003] NSWSC 132 at [8]-[9]; Phillips, Re Estate of Joel [2007] NSWSC 639 at [14]. Others approach a decision from the opposite direction: eg, ES Vance, Executors Commission (Law Book Co, 1969), pp 182-183. Either way, there is merit in a reality check on the reasonableness of any preliminary assessment, coupled with consideration of a check list of factors not uncommonly taken into account in the quantification of executor's commission.
53The factors to be taken into account in the assessment of executor's commission (or upon consideration, under PAA s 86A or a similar provision, whether commission is excessive) are not uncommonly described by reference to ES Vance, Executor's Commission (Law Book Co, Australia, 1969) at pp 187-190: eg, Allen v Union-Fidelity Trustee Co of Australia Limited (1986) 6 NSWLR 341 at 345E-346D; Patterson v Halliday [2003] VSC 298 at [26]-[27].
54To focus unduly on the application of percentage rates that might be perceived to be those that have been, or should be, "ordinarily" or "usually" applied is an invitation to error. They can be a useful guide to decision making, and their utility is not to be discounted because of a need to adapt them to the facts of the particular case, but they are no more than a guide.
55In Phillips, Re Estate of Joel [2007] NSWSC 639 at [11] Windeyer J appears to have condoned resort to such a guide in terms that suggest he accepted as "usual rates of commission" (not, it must be said, "the" usual rates of commission): between 0.25% and 2.5% on capital realisations, 1%-2% on assets transferred in specie, and 1%-5% on income. At the same time, he cautioned that each case must be looked at on its own facts and that, where an estate is a large one, a rate at the lower end of the range would be "usual".
56In Hawkins v Barclay-Brown [2010] NSWSC 48 at [68]-[69] Slattery J accepted, as rates of commission commonly allowed in practice, rates published in Mason & Handler, Succession Law and Practice NSW (Lexis Nexis, 1985), para [144.1.1.3]: from 0.25% to 2% on capital realisations; from 2% to 4% on income collections; and from 1% to 2% on assets transferred in specie. Upon an assessment of commission to be allowed in a large estate, his Honour selected rates at or below those ranges: 1% on capital realisations; 2% on income collections; and 0.5% on assets transferred in specie: [2010] NSWSC 48 at [69]-[70].
57In the decision under review the registrar worked from a range of "usual" rates closer to those published in RS Geddes, CJ Rowland and P Studdert, Wills Probate and Administration Law in NSW (LBC, 1996), para [86.20] on p 586: from 0.25% to 2.5% on capital realisations, from 1% to 5% on income collections, and from 0.25% - 1% on assets transferred in specie.
58The second edition of Hastings and Weir, Probate Law and Practice (LBC, 1948) - regarded still by NSW probate practitioners as worthy of reference - records, at p 274, a different set of "ordinary" rates: 0.75% to 2.5% on capital, and 1% to 5% on income.
59All texts generally qualify their statements about "ordinary" or "usual" rates by noting that an assessment of commission depends upon the facts of the particular case. Published "ranges" of percentage rates are, at most, guidelines to decision-making.
60There is a logical difficulty in pretending that precision attaches to any particular range of percentages in an environment (such as that generally experienced on an exercise of jurisdiction under PAA s 86(1)) in which the remuneration allowed to an executor is moderated by selection of a particular rate as applicable to the facts of a particular case. The process of moderation of any expressed range of "usual" or "ordinary" percentage rates is subsumed in the selection of a particular rate, not articulated in terms of an adjustment of the lump sum aggregation of intermediate percentage calculations referable to categories of dealings in estate property.
61If and to the extent that reference is made to "ordinary" or "usual" rates, as a compendious way of referring to accumulated experience, care needs to be taken to place that reference in the context of a determination of what is "just and reasonable" for the executor's "pains and trouble". Whatever intermediate calculations are made by reference to the categories for which the Probate Rules provide (in old SCR Pt 78 r 81(3), now SCR Pt 78 r 84(2)), an assessment of remuneration that is "just and reasonable" requires the ultimate, resultant dollar amount to be weighed in the balance.
62The concept of a "just and reasonable allowance" likewise counsels caution against an application of standards of reasonableness that might be applied in other areas of the law, such as on a quantum meruit claim (a claim of right) at common law. In the application of the Court's probate and equitable jurisdiction, discretionary in character, regard must be had to a range of factors (including the summary nature of the jurisdiction, the size and nature of the deceased's estate, the terms of any will and the rights of beneficiaries) rather than taking refuge in standard rates of remuneration that may guide a common law claim in contract or restitution: Watters, Re Estate of Dibbs [2006] NSWSC 1277 at [16].
63For most purposes, the expression "just and reasonable" may be taken to be commensurate with the word "reasonable" standing alone. However, the conjunction of "just" and "reasonable" does have work to do.
64First, it is an indicator that a determination in favour of a grant of remuneration to an executor, administrator or trustee of a deceased estate is a discretionary concession (an "allowance") in favour of an accounting party, a fiduciary, on the passing of his, her or its accounts in the estate in respect of which fiduciary obligations are owed.
65It is not necessary, in these proceedings, to consider whether the right of an executor to apply for commission on the passing of his, her or its accounts is in the nature of a property right, assignable or a "mere expectancy" (Mayne v Jaques (1960) 101 CLR 169 at 181-182) but, as Sir Victor Windeyer noted in that case, there is authority for the proposition that such right as an executor may have is a "mere expectancy": Moss v Barnett (1862) 1 SCR (NSW) 313 at 316-317; Re Browne (1895) 1 NSWLR (B&P) 62 at 67-68, 69 and 70-71.
66That authority may be qualified to the extent that the High Court, in Nissen v Grunden (1912) 14 CLR 297 at 307 and Mayne v Jaques (relevantly at 1010 CLR 181-183), may be taken to have accepted that an allowance for executor's commission can be made in favour of the deceased estate of an executor.
67However, an executor is not entitled to commission. The granting of commission, although normal where an executor has been involved in "pains and trouble", is discretionary and may be refused for any proper reason: In the Will of Oddie [1976] 1 NSWLR 371 at 374B; Re Estate of Wilson, deceased (1987) 11 NSWLR 493 at 495B; Re Craig (1952) 52 SR (NSW) 265 at 267-268; Vance, Executors Commission (1969) citing Crout v Beissel [1909] VLR 207 at 213-214; "Executors' Commission" 1934) 8 ALJ 121.
68An executor may be denied commission if guilty of a breach of trust, neglect or disregard of fiduciary obligations: In the Will of Henry Sherringham (1901) 1 SR (NSW) (B&P) 48; In the Will of James Greer (1911) 11 SR (NSW) 21 at 23; Guazzini v Pateson (1918) 18 SR (NSW) 275 at 285-286.
69In the Will of Wallace (1934) 51 WN (NSW) 84 at 86 provides a salutary illustration of this: an executor was denied commission because, although he had acted honestly and had made good estate funds misappropriated by a co-executor, he had failed to safeguard the estate against his co-executor's misconduct.
70Secondly, the standard of "reasonableness" applied on a claim of a common law right to remuneration (in contract or, on a quantum meruit, in restitution) is not necessarily the same as that applicable on a fiduciary's application for an allowance of remuneration.
71Thirdly, a fiduciary's application for remuneration must accommodate the purpose for which particular fiduciary obligations are owed, and the purpose served by an allowance of remuneration.
72In the probate jurisdiction, each of these purposes is: (a) the due administration of the estate of a person who, absent in death, is unable to act otherwise than through a legal personal representative or the Court; and (b) administration of such an estate, in the interests of the deceased and his or her beneficiaries, according to their station.
73The general rule, that the office of a fiduciary is a gratuitous one unless a special arrangement is made, is expressed in terms of a basic proposition coupled with an exception because experience has demonstrated that, first, the obligations of a fiduciary can be so onerous as to require a grant of relief from the burden they represent; and, secondly, an allowance of remuneration may be dictated by necessity in that, unless an entitlement to remuneration is allowed or held open as a possibility, prospective executors, administrators or trustees might decline to serve in those offices.
74The inherent jurisdiction of the Court to allow remuneration to an executor, administrator or trustee is extensive: Nissen v Grunden (1912) 14 CLR 297; Anson v Anson [2004] NSWSC766; 12 BPR 22303 at [75]-[76]; Re Sutherland [2004] NSWSC 798; 50 ACSR 297 at [11]-[17].
75In an appropriate case, it could extend to allowing an executor, administrator or trustee to receive a commercial return for services supplied in administration of an estate.
76However, leaving aside professional estate managers governed by legislation, such as the NSW Trustee (governed by the NSW Trustee and Guardian Act 2009 NSW) and licensed trustee companies (governed by chapter 5D of the Corporations Act 2001 Cth and the Trustee Companies Act 1964 NSW), the Court's inherent jurisdiction is not routinely exercised to grant a commercial rate of remuneration to business interests engaged in the administration of a deceased estate.
77The same can be said of the more summary, statutory entitlement to apply for remuneration for which PAA s 86 provides. An allowance of remuneration for "pains and trouble" can extend, in an appropriate case, to an allowance of remuneration at a commercial rate, but the expression "pains and trouble" sits comfortably - perhaps more comfortably - with an allowance of remuneration at something less than a commercial rate of return to a fiduciary. Authority can be found for the proposition that "pains" covers "responsibility and consequent anxiety and worry undertaken and undergone" and "trouble" refers to "work done": In Re Allan McLean (Deceased) [1911] 31 NZLR 139 at 144. For myself, I am inclined to the view that the expression "pains and trouble" is a composite one which ought not to be unnecessarily parsed.
78As a matter of jurisdiction, an expansive, rather than a narrow, construction should be given to PAA s 86(1). It should be construed beneficially, in aid of the Court's inherent jurisdiction.
79Nevertheless, in a case in which an application for remuneration is made by an executor, administrator or trustee after work has been done (the usual case), or outside the terms of the instrument pursuant to which the particular fiduciary office is held, a grant of remuneration by the Court might well occupy territory at the lower end of the range of remuneration that might otherwise be regarded as reasonable. The Court's task on an assessment of commission under PAA s 86(1) is to fix, by a summary process of estimation, an allowance that is just and reasonable for past work.
80An executor, administrator or trustee who wants more than a moderate allowance should, in the ordinary case, make a special arrangement in which competing interests can be duly weighed. Two examples of why this should be so may be offered. Both involve a prospective executor, administrator or trustee protecting his, her or its interests prospectively. Neither is intended to reflect on the facts of this case.
81Take, first, the case of a solicitor or accountant for a wealthy client who, satisfied with professional services rendered to date, asks his or her professional adviser to serve as an executor of his or her deceased estate. At the time of such a request the professional may well stand in a fiduciary relationship with the will-maker and, moreover, be bound by a professional, as well as an equitable, obligation to advise the will-maker to obtain independent advice before allowing to that professional an entitlement to perform the duties of an executor or trustee at full commercial rates of remuneration.
82That, in itself, does not invalidate provisions of a will conferring a benefit on a person standing in a fiduciary relationship with a will-maker, who might give his or her fully informed assent to a legacy, charging clause and/or commission clause in favour of the fiduciary: In the Will of Shannon (1977) 1 NSWLR 210 at 217D-218D.
83However, PAA s 86(1) should not, ordinarily, be deployed to grant a professional person a commercial rate of remuneration, for professional or executorial work, that he, she or it could, and should, have negotiated with a testator, or testatrix, at the time a will was made. If PAA s 86(1) were to be routinely used by professional advisers to obtain a grant of remuneration at a commercial rate, without notice to the client, the fiduciary protections available to a client, and the client's autonomy, might be prejudiced. Given a choice, a fully informed client might hesitate before nominating his or her professional adviser to an office over which, in death, he or she can have no control.
84Professional work done by an executor and properly charged for and paid out of an estate does not, of itself, disentitle an executor from an allowance of commission or affect its quantification. An examination of case law reveals a variety of rules of practice about perceived relationships between, on the one hand, various types of will clauses (including, but not limited to a charging clause) and, on the other, a discretionary allowance of commission. Accumulated case law can provide substantial guidance in a particular case, but its field of operation is generally that of practice, rather than jurisdiction, save to the extent that it reflects the general rule that the Court's task is to determine what (if any) remuneration should be allowed, judged on an application of the "just and reasonable" standard, on the facts of the case at hand.
85In all cases, regard must be had to the terms of the Will and the extent to which (if at all) a will-maker intended to benefit, or to permit a benefit to accrue to, an executor in deciding whether (and, if so, in what amount) the executor is to be allowed commission: In the Will of Kerrigan (1935) 35 SR (NSW) 242 at 245-246 and 251-252; In the Will of J Marsden (1926) 43 WN (NSW) 170; In the Will of TS Douglas (1951) 51 SR (NSW) 282 at 284-285; Re Craig (1952) 52 SR (NSW) 265 at 267-268; In the Will of Sheppard [1972] 2 NSWLR 714 at 720A-F; In the Will of Oddie [1976] 1 NSWLR 371 at 374-376; In the Will of Shannon [1977] 1 NSWLR 210 at 216C-F; Hawkins v Barkley-Brown [2010] NSWSC 48 at [47]-[55].
86The second example is, perhaps, a variant of the first, at least in some cases. If a person nominated to the office of an executor, administrator or trustee of a deceased estate declines to take up the office unless remunerated on a certain basis, the Court (or, in respect of a trust, perhaps another appointor) may decide to pass over that nominee in favour of somebody able and willing to perform the role on terms more favourable to the estate.
87The policy considerations that underlie these two examples apply to deceased estates of all sizes. However, they may have special resonance in relation to large estates because of the availability of property to fund a claim for remuneration, and the possibility (although by no means a certainty) of complexity that might warrant, if not require, resort to a professional adviser. The size of an estate does not, of itself, determine the availability, or quantum, of an allowance for commission; the focus is more directly on the work done by an executor in the period covered by the estate accounts from which an allowance of commission might be made: In the Will of Sheppard [1972] 2 NSWLR 714 at 720F.
88The principles here discussed do not vary according to the size of the estate under consideration.
89Nevertheless, in their application, the size and complexity of the estate in question are factors to be taken into account; and in the context of the present proceedings, it must be said, there is no established rule of practice that justifies a grant of remuneration, or a grant of remuneration at commercial rates, merely because an estate is a large one. Unlike the case of a liquidator, trustee in bankruptcy or receiver and manager operating in a commercial setting (where remuneration may be customarily allowed according to a scale approved by the Court), executor's commission is not determined according to the actual time spent, and neither is it determined as if executorship were a commercial enterprise: Watters Re Estate of Dibbs [2006] NSWSC 1277 at [16]. In each case, an allowance of remuneration under PAA s 86(1) is directed towards, and limited to, what is "just and reasonable" for the fiduciary's "pains and trouble".
90That is to be borne in mind in every case but, perhaps, especially those cases where (as here and customarily on an application for executor's commission) the application for remuneration must be dealt with by the Court without the assistance of a contradictor and in the absence of any evidence of consent by each person (ordinarily a beneficiary but, possibly, in some cases, a creditor) potentially affected by any order for remuneration that might be made.
91A convenient statement of how PAA s 86(1) is intended to operate may be taken from the judgment of Holland J in Estate of Edward Simshauser, deceased (NSW Supreme Court, 24 November 1978, unreported) at p 4:
"Section 86(1) itself lays down the basis upon which [an assessment of commission] is to be made, that is to say, an allowance that is just and reasonable for the pains and trouble taken by the executors. This requires a full and fair examination of the work and services performed for the estate by the executors taking into account the whole of the circumstances including the provisions of the will, the nature of the assets and, where a business is being carried on the nature of the business, difficulties encountered in carry it on and the time, efforts and skills required of the executors properly to carry on the business, realise assets and administer the estate generally in the interests of and for the benefit of the beneficiaries. The object is to arrive at a just and reasonable allowance either by way of percentage or by a lump sum for the services rendered by the executors: In The Will of HC White (1908) 8 SR (NSW) 582 at 584-585; In The Will of Sheppard (1972) 2 NSWLR 714 at 720-721."
92In that case Holland J allowed "a lump sum in the nature of a management fee and remuneration for labour" in respect of part of the period covered by the accounts under review, and an allowance of commission based on a percentage of account transactions for the balance of the period.
93If a prospective executor, administrator or trustee of a deceased estate wants to accept an appointment to one of those fiduciary offices as a business proposition, it is incumbent upon that person: (a) to reach an agreement with the testator or testatrix before death: (b) at an appropriate time, to secure the agreement of all interested parties, such as beneficiaries or creditors; or (c) to obtain approval to remuneration (from the Court, exercising probate jurisdiction, or from an appointor under a trust instrument) as a condition of appointment to the office: : Ayliffe v Murray (1740) 2 Atk 58 at 59-60; 26 ER 433 at 434; Plomley v Shepherd (1896) 17 NSWR (Equity) 215 at 217; F Jordan, Chapters on Equity in NSW (6th ed, 1947), p 124 note (m).
94Parties with an interest in the due administration of a deceased estate may, that way, be allowed a leeway of choice in the matter. A prospective executor, administrator or trustee who does not make such a special arrangement, and accepts a fiduciary office that is prima facie a gratuitous one, cannot, in the ordinary course, complain if a discretionary allowance of remuneration out of the estate at a rate which, although "just and reasonable" for "the pains and trouble" by the fiduciary, is less than a commercial rate, less than what might have been negotiated at an earlier time or less than a perceived entitlement.
95The discretionary character of an allowance of executor's commission is made more explicit under the new Probate Rules than was formerly the case. SCR Pt 78 r 76(2) describes an application for commission as a "request" that the Court allow commission. SCR Pt 78 r 83(c) provides that, in proceedings for the passing of accounts, "the Court ... if satisfied that any commission that is sought is appropriate, may make an order allowing commission". An executor has a statutory right to apply for commission, but such relief as may be available is within the discretion of the Court.
96At least some of the difficulties associated with the quantification of executor's commission arise from the desirability of the primary decision-maker on an application for commission having knowledge and experience in dealing with the routine minutiae of estate administration.
97That is particularly so because of the summary nature of the decision-making process engaged. The exercise undertaken often involves an element of intuitive judgment, not merely evaluation of proven facts in a single case, which is assisted by exposure to a broad range of cases over an extended time. That is a characteristic of the making of an expert judgment or in the expression of an expert opinion.
98Recognition of this provides both an explanation of, and a justification for, the respect traditionally accorded to decisions of specialist registrars, with known expertise, by judges undertaking a review of their decisions: Estate of Sharman; Ex parte Verslius [1999] NSWSC 709 at [2]-[3]; Phillips, Re Estate of Joel [2007] NSWSC 639 at [12]; Creer - Estate of Peters [2007] NSWSC 1291 at [11].