In the matter of the estate of Rajendran [2025] VSC 371 (26 June 2025)

2 The deceased was survived by her four daughters, Natalia, Soraya Daria Williams ('Daria'), Anashuya Nichola Lewis ('Anna'), and Tanya Anastasia Rajendran ('Tanya') ('daughter beneficiaries'), her husband Arumugam Rajendran having died in 2010.[1] The deceased had six grandchildren, being Daria's children Daniel Williams and Sarah Williams, Anna's children Tashnee Lewis, Zachary Lewis and Pria Lewis, and Natalia's son Sebastian Liu ('grandchildren beneficiaries'). The grandchildren beneficiaries are all now adults.

(a) gave any shares owned in the corporate trustee of her self-managed superannuation fund to the daughter beneficiaries in equal shares;

(b) divided the proceeds of any superannuation death benefit payable to the estate equally among the daughter beneficiaries;

(c) divided her residuary estate into 10 equal parts, four of which were to pass to each of the daughter beneficiaries, and six of which were to pass to each of the grandchildren beneficiaries; and

(d) provided a charging clause for any persons engaged in a professional capacity in the administration of the estate.

4 The original inventory of assets and liabilities dated 24 September 2018 filed with the application for the grant of probate of the will ('inventory') disclosed assets valued at $16,659,373.23, comprising real properties in Camberwell ('Camberwell property') and Colac ('Colac property'), share portfolios, bank accounts and fixed deposits in Australia and Singapore, and jewellery and other personal effects. The inventory also included the deceased's interest in the estate of her late husband, which largely comprised of shares in Singaporean and Malaysian companies, valued in the inventory at nearly $5 million ('overseas shares'). The inventory also referred to loans made by the deceased to A Rajendran Company Pty Ltd ATF The Rajendran Family Trust ('family trust') and the deceased's account with the family trust, with a total value of over $6.1 million. The liabilities of the estate were $202,899.81.[2]

5 By summons filed on 15 February 2024, the executors made an application seeking commission pursuant to s 65 of the Administration and Probate Act 1958 (Vic) ('Act') ('application'). The administration account dated 1 February 2024 filed with the application referred to a gross corpus of $15,229,948.85 and income of $2,877,747.11. Four of the beneficiaries, including Daria, Tanya, Daniel and Sarah ('objectors'), have filed affidavits and submissions objecting to the application, while the remaining beneficiaries (Anna, Natalia's son and Anna's children) do not oppose the application. The will does not include a clause either permitting or prohibiting the payment of commission to the executors.

6 The objectors oppose the application on the basis that:

(a) the manner of the executors' request for commission was improper, in that it was excessive, coercive and lacked transparency;

(b) the executors' conduct of the administration of the estate disentitles them to an award of commission;

(c) in particular, there have been discrepancies and misrepresentations made about the value of the estate and particular assets of the estate, and an overall lack of transparency and improper accounting throughout the administration of the estate;

(d) the executors have failed to act in the best interests of the beneficiaries of the estate, and have demonstrated preferential treatment towards certain beneficiaries; and

(e) there have been substantial and unreasonable delays in the administration of the estate, despite the estate being relatively simple to administer.

7 The executors seek an award of commission in the sum of $243,669.29, which comprises 1.5 percent of the corpus and income of the estate, less the payments which had already been made to Wood Fussell Solicitors by the estate prior to Mr Brand's retirement from the firm in 2019. However, for the reasons which follow, I have determined to award the executors commission of 0.8 percent of the corpus of the estate, less the amount of fees paid to Wood Fussell. While many of the objectors' criticisms of the administration of the estate are unwarranted or overstated, some are legitimate, such as their complaints about the delays in the administration of the estate.

8 The deceased had been living at a property in Canterbury from around 2011 ('Canterbury property').[3] In or around 9 October 2015, the deceased suffered a stroke and subsequently required full time care. Various disputes then arose between the daughter beneficiaries as to her medical, financial and personal care. Pursuant to an enduring power of attorney, Anna managed the deceased's financial affairs in the period following her stroke and up to her death.

9 Prior to the death of the deceased, Daria made two applications to the Victorian Civil and Administrative Tribunal ('VCAT') regarding the affairs of the deceased ('VCAT proceedings'). Sometime in or about 2016, Daria filed an application seeking the appointment of an administrator to manage the deceased's affairs, which VCAT dismissed in February 2016. A second application for the appointment of an administrator was made to VCAT by Daria in October 2017, and in February 2018, VCAT ordered that Anna provide accounts and supporting documents for the period she had acted as the deceased's attorney up until 31 March 2018. The accounts provided by Anna were examined by an independent examiner who concluded in a report dated 21 August 2018 that Anna had maintained appropriate records for the period under review. The independent examiner did not express an opinion about the appropriateness of payments made by Anna. Despite Daria's urging to the contrary, out of scope of the review was Anna and Natalia's management of the family trust and any dealings with the overseas shares.[4]

10 In or around February 2018, following an application made to VCAT by the care facility at which the deceased resided by reason of disputes within the family concerning the deceased's medical treatment, State Trustees Ltd was appointed as the deceased's guardian for the purpose of making medical treatment decisions.

11 The deceased died from pneumonia on 9 June 2018. A rosary service was held for the deceased on 12 June 2018, with the funeral scheduled to take place the following day. However, following some concerns raised by Daria and Tanya with the Coroner regarding the circumstances surrounding the deceased's passing, the deceased's body was collected by the Coroner prior to the funeral. The deceased's body was released to the family the following week with no adverse findings being made by the Coroner against any person.

12 On 26 July 2018, Tanya filed a caveat objecting to the will being admitted to probate on the basis that the deceased lacked testamentary capacity prior to and at the time she executed the will ('passing over proceeding'). Tanya also sought to have the executors passed over on the basis that they failed to investigate her allegations regarding Anna's alleged misuse of the deceased's power of attorney to make certain transactions using the deceased's funds (see below). The passing over proceeding was compromised between the parties. Tanya withdrew her caveat on 21 February 2019 and the will was admitted to probate on 5 March 2019.

13 Daria also issued a claim against Anna at VCAT in or around 2020 seeking that the deceased's estate be compensated for payments made by Anna between October 2015 and the date of the deceased's death which Daria said contravened the Powers of Attorney Act 2014 (Vic). These payments included substantial cash gifts to Anna's children for milestone birthdays, substantial cash gifts to the deceased's sister, payments to non-professional carers and companions for the deceased while she was in care, and the payment of a stipend to Anna for providing the deceased with care. On 23 December 2020, VCAT dismissed the application. In June 2020, Tanya applied to VCAT seeking that Anna provide statements of the deceased's overseas bank accounts, though it is unclear whether this application was ever heard by VCAT.

14 In or around September 2018, Natalia and Anna searched the Canterbury property for any jewellery, photographing the items they found and sharing the images with the other beneficiaries, asking them to specify which pieces they wished to claim. Tanya and Daria claimed that there was missing jewellery which needed to be reported to the police as having been stolen.

15 On or around 3 November 2019, Natalia and Anna travelled to Singapore, in order to attend to the resealing of the grant of probate of the will in Singapore, which was required to deal with the administration of the assets of the estate held in Singapore, including bank accounts and the overseas shares, and required the personal attendance of the executors. As Mr Brand suffered from some health problems which limited his ability to travel overseas, he provided Anna with a power of attorney to enable her to act on his behalf during this trip.

16 In March 2020, Tanya commenced a proceeding in the Singapore High Court against the executors ('Singapore proceeding'). Tanya claimed that the overseas shares and dividends which had accumulated in a Singapore bank account in the name of the deceased's late husband ('dividend funds') did not form part of the estate and should not have been included in the inventory. Instead, Tanya claimed that the overseas shares and the dividend funds were held on trust for the daughter beneficiaries. In response, the executors argued that the overseas shares and the dividend funds formed part of the estate in accordance with the terms of the will of the deceased's late husband. The parties attended a mediation on around 11 September 2020, and reached an in-principle settlement of the Singapore proceeding at around that time. A deed of family arrangement ('deed') to give effect to the settlement was eventually executed by the executors and each of the beneficiaries in September 2021.

17 The deed provided for the grandchildren beneficiaries to relinquish any claims to the overseas shares and the dividend funds. The deed provided that within three months of the date of execution of the deed, the executors would sell the overseas shares and provide the daughter beneficiaries with an account of the proceeds of sale of the overseas shares and details of the dividend funds, with the final distribution of these funds to be made to the daughter beneficiaries within six months of the date of the execution of the deed, less the sum of up to $50,000 for the 'Executors' Costs of Suit and the Executors' legal and/or other costs in relation to and in connection with the preparation, negotiation and execution of [the deed]'.

18 Annexed to the deed was a list of the overseas shares, a summary of unbanked cheques, and statements of account provided by two Singapore stockbrokers ('brokers').

19 While the Singapore proceeding was ongoing, the overseas shares could not be dealt with.[5] The administration account shows that the bulk of the proceeds of sale from the overseas shares were received by March 2022, while the dividend funds were paid to the estate in August 2022.

20 In or around September 2020, the executors received a notice to show cause from Heritage Victoria ('show cause notice') pursuant to s 154(2) of the Heritage Act 2017 (Vic) regarding the Camberwell property, alleging that the Camberwell property had fallen into disrepair.[6] Various works were required to prevent further deterioration of the Camberwell property. The executors decided to comply with the show cause notice, and engaged various professionals to undertake the repairs utilising estate funds during the course of 2021 and 2022.

21 Following repeated requests by the executors to do so, Tanya and Daria removed their belongings from the Camberwell property by around March 2021, and in June 2022, the Camberwell property was sold by public auction. The purchaser was Mark Lewis, Anna's husband.

22 The administration account shows that almost all of the assets of the estate had been brought in by the end of 2022. The final repayment of the deceased's loan to the family trust was made on 6 December 2022, and the proceeds of sale of a parcel of Telstra shares was received on 13 December 2022.

23 The administration account shows that distributions to the beneficiaries were made on the following dates:

24 Accordingly, by March 2023 the daughter beneficiaries had each received $2,505,373.63 from the estate, and the grandchildren beneficiaries had each received $1,055,136.40. Following the total distributions to date of $16,352,312.92, the balance of funds remaining in the estate bank account as at November 2023 was $647,292.45. The above calculations show that Natalia has received approximately 15 percent of the value of the estate.

25 On 10 November 2022, Natalia wrote to the beneficiaries seeking commission of 1.5 percent of the net value of the estate, which at that time was approximately $16.9 million, to compensate the executors for the work undertaken by them. The beneficiaries were requested to respond within eight days, failing which it was foreshadowed that an application would be made to the Court. The objectors declined to consent to the request for commission.

26 On 13 February 2023, the executors' solicitors wrote to the beneficiaries seeking their consent to the payment to commission of 1.5 percent of the corpus and income of the estate, now valued at approximately $21 million ('commission request'),[7] failing which the executors would apply to the Court seeking commission of 3 percent of the value of the estate. Tanya responded by email on 14 and 23 February 2023 stating that the information the executors had provided her with respect to the estate accounts was incomplete, and she required all statements from the brokers from 2018 so that she could review the transactions. On 26 May 2023, Natalia emailed the beneficiaries asking them to reconsider their position regarding the commission request given the costs associated with pursuing the matter in Court, to no avail. Following further correspondence between the executors and their solicitors on the one hand, and the objectors on the other hand during the course of 2023, the application was issued on 15 February 2024.

27 The key issues for determination in the application are whether:

(a) having regard to the executors' pains and troubles in the administration of the estate and the principles governing the award of executor's commission, it is appropriate to award commission and if so, the appropriate amount; and

(b) the executors' conduct in managing the estate and dealing with the beneficiaries should disentitle them from receiving commission or warrant a reduction in the amount awarded.

28 The following table summarises the work undertaken by Natalia in the administration of the estate:

Funeral arrangements, arranging flowers, the wake and headstone

Addressing accusations made to Coroner's office

Collating documents for VCAT proceedings for Anna

Collating information required for inventory of assets

Supreme Court caveat application and passing over application

Dealing with chattels

• Correspondence with Caroline Tickner of Leonard Joels (1.5 hours)
• Meeting with Ms Tickner for photos (3.5 hours)
• Searching Canterbury property for jewellery and photographing it (5 hours)
• Correspondence with beneficiaries about allocation (4 hours)
• Meeting Mr Brand at Wood Fussell's office to sort out list and allocation of chattels (1.5 hours)
• Delivering Tanya's jewellery to Wood Fussell (1 hour)
• Meeting Daria's friend at Canterbury property (2 hours)

Arranging repayment of loan to the Rajendran Family Trust

• 66 emails with Queensland agent (11 hours)
• 10 phone calls with agent (2 hours)
• Emails between solicitor, agent and Natalia (1.5 hours)
• Phone calls between solicitor, agent and Natalia (2.5 hours)
• 30 emails with Victorian agent (6 hours)
• Attending Victorian auction (3.5 hours)

Arranging sale of Colac property (dealing with agent and conveyancer)

Dealing with heritage repair orders for Camberwell property

• Meeting with architect (4 hours)
• Meetings with Heritage Victoria (4 hours)
• Meeting and four phone calls with pest control companies (2.5 hours)
• Meeting pest controllers (2 hours)
• Meeting fencing business to get quote for fence replacement (3 hours)
• Meeting plumber to repair pipes and gutters (5 hours)

Preparing Camberwell property for sale

• Clearing garden and house (75 hours)
• Trees cut and cleared (9 hours)
• Unlocking gate for gardeners to mow lawn (4 hours)
• Meeting surveyors (1.5 hours)
• Calls to surveyors (1 hour)
• Reporting break-ins to police (1 hour)
• Arranging delivery of skips (5 hours)
• Engaging and meeting estate agents - Woodards (3 hours) and South Yarra agency (4.5 hours)
• Correspondence with Woodards (9 hours)

Travel to Singapore to obtain evidence of resealed grant, attend to bank accounts and transfer Singaporean and Malaysian shares

Dealing with Singapore proceeding

• Correspondence with lawyer (25 hours)
• Correspondence with Mr Brand (12 hours)
• Zoom meetings with lawyer (3 hours)
• Notarising affidavits and arranging courier to Singapore (7 hours)
• Attending mediation (6 hours)
• Finalising settlement agreement (7 hours)

Correspondence with brokers and Tanya to arrange sale of overseas shares

Addressing beneficiaries' requests for information regarding overseas shares

Other issues

• Repayment of margin loan with Commsec (2 hours)
• Opening estate bank account and closing deceased's accounts (3 hours)
• Arranging sale of deceased's Australian shares (5 hours)
• Arranging payments from aged care and health fund (5 hours)
• Tax returns (25 hours)
• Dealing with Boroondara Council for tree removal application (4 hours)
• Meeting Mr Brand to sign cheques (62 hours)
• Compiling estate accounts as required by Daria's lawyer (47 hours)
• Calling probate office (0.25 hours)
• Meeting David Wood at Wood Fussell (2 hours)
• Correspondence with Supreme Court concerning accounts (2 hours)
• Preparing affidavits in support of accounts (3 hours)

29 The following table summarises the work undertaken by Mr Brand in the administration of the estate:

Preparing the Camberwell property for sale

• Discussing the sale of the property with Natalia and providing his advice, opinion and approval
• Attending the property to view its condition
• Engaging and meeting with estate agents and attending the auction

Discussions with Natalia about the steps involved in resealing grant of the probate in Singapore and preparing for the sale of the overseas shares

Dealing with Singapore proceeding

• Correspondence and meeting with lawyers and consideration of next steps
• Discussing the terms of the draft settlement deeds

Discussions with Natalia regarding the sale of the overseas shares and allegations made by the beneficiaries

Regular discussions with Natalia and providing his advice, opinion and approval as required regarding the following other issues:

• Repayment of margin loan with Commsec
• Opening estate bank account and closing deceased's accounts
• Arranging sale of deceased's Australian shares
• Arranging payments from aged care and health fund
• Tax returns
• Dealing with Boroondara Council for tree removal application
• Meeting to sign cheques
• Compiling estate accounts as required by Daria's lawyer
• Calling probate office
• Meeting David Wood at Wood Fussell
• Correspondence with Supreme Court concerning accounts
• Preparing affidavits in support of accounts

30 The executors and the objectors filed voluminous affidavits with respect to the application. There was a substantial overlap between the matters deposed to in the affidavits, particularly those relied upon by the objectors (who represented themselves) and the submissions advanced by the parties. Given the volume of material before me, and the overlap between the evidence and the submissions, I will not summarise the evidence in any great detail in these reasons.

(a) an affidavit of Natalia sworn on 12 February 2024 ('Natalia's first affidavit');

(b) a further affidavit of Natalia sworn on 12 February 2024 exhibiting an account of the administration of the estate ('administration account');

(c) an affidavit of Mr Brand sworn on 12 February 2024 ('Mr Brand's first affidavit');

(d) a further affidavit sworn by Natalia on 8 April 2024, in which Natalia deposed that Anna's three children had instructed that all documents related to this proceeding be sent to them care of their mother;

(e) a further affidavit sworn by Natalia on 2 August 2024 ('Natalia's fourth affidavit');

(f) a further affidavit of Mr Brand sworn on 2 August 2024 (Mr Brand's second affidavit');

(g) an affidavit sworn by Mr Simon Curry, the executors' solicitor, on 7 October 2024 which exhibited documents showing the ownership history of a property in Anglesea; and

(h) a further affidavit sworn by Natalia on 31 October 2024 ('Natalia's fifth affidavit'), which was filed after the hearing of the substantive application and the making of orders for particular discovery that day.

(a) an affidavit of Daria sworn on 4 July 2024 ('Daria's first affidavit');

(b) an affidavit of Sarah sworn on 4 July 2024 ('Sarah's affidavit');

(c) an affidavit of Daniel sworn on 4 July 2024 ('Daniel's affidavit');

(d) an affidavit of Tanya sworn on 6 July 2024 ('Tanya's first affidavit');

(e) a further affidavit of Tanya sworn on 2 September 2024 ('Tanya's second affidavit');

(f) a further affidavit of Daria sworn on 13 September 2024 ('Daria's second affidavit');

(g) a further affidavit of Tanya sworn on 13 September 2024 ('Tanya's third affidavit');

(h) a further affidavit of Daria sworn on 30 September 2024 ('Daria's third affidavit');

(i) a further affidavit of Tanya sworn on 2 October 2024 ('Tanya's fourth affidavit'); and

(j) a further affidavit of Tanya sworn on 29 November 2024 ('Tanya's fifth affidavit').

33 In Natalia's first affidavit, Natalia deposed in detail as to the background to the proceeding, including the disputes that arose between the daughter beneficiaries in the years leading up to and following the deceased's passing. Natalia also deposed as to the work involved and hours that she had spent in the administration of the estate, as to the 'abusive and accusatory' correspondence she has received from Daria and Tanya and the impact that the conflict within the family and the duties of her executorship have had upon her life and wellbeing.

34 Natalia's first affidavit exhibited various documents, including inventories of the deceased's chattels, the show cause notice, photographs of items stored at the Camberwell property, correspondence between the executors and beneficiaries, Singapore travel documents, documents relating to the Singapore proceeding, including the deed, the estate accounts, and a summary of the hours Natalia claims to have spent on the administration of the estate (see paragraph 28 of these reasons).

35 Mr Brand's first affidavit largely confirmed the details set out in Natalia's first affidavit. He deposed that he regularly provided his advice, opinion and approval to Natalia with respect to the administration of the estate in accordance with his obligations as co-executor, and that Natalia had discussed with him the stress she had suffered during the administration of the estate due to the ongoing conflict between the family members. Mr Brand also provided a summary of the hours he had worked on the estate (see paragraph 29 of these reasons), and exhibited the invoices issued by Wood Fussell to the estate up to Mr Brand's retirement in May 2019.

36 In Daria's first affidavit, Daria adopted the contents of Tanya's first affidavit and deposed further as to the following matters:

(a) the inaccuracy, unreliability and excessive nature of the time estimated by the executors to have been spent on the administration of the estate;

(b) her concerns regarding the conduct of Mr Brand and his improper delegation of authority to Anna by a power of attorney in June 2019;

(c) the executors' preferential treatment towards Anna to the detriment of the remaining beneficiaries and the estate;

(d) the discrepancies in the valuation of the estate, the executors' alleged failure to maintain proper accounts, and overall delays and mismanagement in the administration of the estate;

(e) the VCAT proceedings; and

(f) the improper manner by which the executors requested their commission.

37 Daria's first affidavit exhibited copies of the deceased's prior wills, correspondence with Heritage Victoria confirming that the Camberwell property could have been sold before complying with the show cause notice, correspondence regarding the VCAT proceedings, documents regarding the Singapore proceeding, emails between the executors and the beneficiaries regarding the deceased's death certificate, the interim distributions, the valuation of the estate and their requests for the full accounts of the estate, and bank account transaction summaries of the deceased.

38 Sarah's affidavit deposed as to her reasons for refusing the request for commission, being the unreasonableness of the application, and the executors' lack of transparency in administering the estate. Exhibited to Sarah's affidavit were copies of correspondence sent to and received from the executors regarding the commission request.

39 In Daniel's affidavit, Daniel deposed as to the Singapore proceeding and the valuation of the overseas shares. Daniel deposed that the executors breached their fiduciary obligations to the beneficiaries by misrepresenting the value of the overseas shares, showing preferential treatment to certain beneficiaries, and by failing to act transparently in their dealings with the beneficiaries. Exhibited to Daniel's affidavit was correspondence between the executors and the beneficiaries regarding the distribution of the estate, the valuation of the overseas shares, and the Singapore proceeding.

40 Tanya's first affidavit largely canvassed the same issues and topics discussed in Daria's first affidavit, descending into more detail with respect to issues where she had more direct knowledge or involvement, such as the Singapore proceeding. Exhibited to Tanya's affidavit were title documents for the deceased's properties, notes taken by Mr Brand of his meetings with the deceased,[10] documents related to the Singapore proceeding and the valuation of the overseas shares, copies of the deceased's will, extensive correspondence between the executors and the beneficiaries, and documents related to the VCAT proceedings, including the examiner's report (see paragraph 9 of these reasons).

41 Natalia's fourth affidavit was made in response to affidavits filed by the objectors and deposed, in summary, as to the following matters:

(a) the deceased's missing jewellery and the distribution of the deceased's jewellery;

(b) the work involved in the sale of the Colac property in 2020, Daria's request to transfer the Colac property to her in specie, and the executors' rejection of that request;

(c) the work involved in preparing the Camberwell property for auction, including dealing with the show cause notice;

(d) the sale of the overseas shares and the allegations that the value of the overseas shares and the dividend funds had been misrepresented by the executors;

(e) the allegation that Anna has been treated preferentially compared with the other beneficiaries;

(f) her involvement in the VCAT proceedings;

(g) the distribution of the deceased's superannuation; and

(h) the complaints made by the objectors regarding the lack of transparency in the administration of the estate.

42 Exhibited to Natalia's fourth affidavit were news articles regarding the sale of the Camberwell property, documents concerning the Singapore proceeding, and emails between the executors and beneficiaries regarding the overseas shares.

43 Mr Brand's second affidavit was made in response to the affidavits sworn by the objectors. He deposed as follows:

(a) that his notes containing the deceased's instructions prior to her death concerning various properties were not the deceased's instructions for her will;[11]

(b) he rejected any claim that he was acting against the interests of the estate in his dealings with Anna;

(c) it was made clear to the beneficiaries that correspondence should be addressed to both executors;

(d) it was necessary for the executors to travel to Singapore for the purpose of calling in the assets of the estate. Given health issues suffered by Mr Brand, he was advised by the executors' solicitors that he could be represented by an attorney;

(e) the deceased appointed him as her executor due to their good professional relationship spanning many years; and

(f) the executors received $50,000 as a reimbursement from the estate for the legal costs incurred by them in the Singapore proceeding, not as compensation for their pains and trouble as executors.

44 In Tanya's second affidavit, Tanya identified alleged inaccuracies in the affidavits of the executors, focussing on apparent discrepancies in the value of the overseas shares. She raised concerns about alleged breaches of the executors' fiduciary duties, and argued that Mr Brand acted against the interests of the estate, including by reason of his support for Anna in the VCAT proceedings. Exhibited to Tanya's second affidavit was correspondence between the beneficiaries and the executors and their legal representatives, overseas share statements, the inventory, documents from the Singapore proceeding, extracts from the executors' affidavits, and documents concerning the VCAT proceedings.

45 In Daria's second affidavit, Daria deposed that there has been a lack of proper accounting and transparency in the administration of the estate despite repeated requests for full accounts. Daria also referred to what she described as improper payments to non-professionals from the funds of the estate, including payments to Anna's husband for research into heritage issues associated with the Camberwell property. Daria sought orders that the executors provide her with certain documents regarding the administration of the estate, and that the executors pay her costs and expenses associated with her efforts to obtain information from the executors. Daria exhibited to the second affidavit the inventory, correspondence between Daria's solicitors and the executors in 2020, and emails between the beneficiaries and the executors regarding the beneficiaries' requests to view the estate accounts.

46 Tanya's third affidavit largely repeated the concerns expressed in her previous affidavits, with a particular focus on the overseas shares. She exhibited various account statements regarding the overseas shares, along with other documents exhibited to earlier affidavits.

47 In Daria's third affidavit, Daria clarified a mistake made in her earlier materials regarding the deceased's superannuation fund and exhibited various documents, including correspondence regarding the Colac property and a valuation of the Colac property, which she had attempted to purchase from the estate, but was refused permission to do so.

48 Tanya's fourth affidavit exhibited correspondence between the executors and the beneficiaries regarding the overseas shares and the belongings stored at the Camberwell property, and documents from the VCAT proceedings.

49 Daria's second affidavit and Tanya's third affidavit were sworn in support of a summons filed by them on 13 September 2024 ('discovery summons'), a few weeks prior to the scheduled hearing date for the application, being 8 October 2024. The discovery summons sought the following orders:

a) All relevant source documents relating to the Estate, including bank statements, invoices, receipts, contracts of sale, etc.

b) The complete workings and calculations used to determine the value of the shares and dividends that comprised the AUD $4,870,325 distribution.

b) All correspondence with DBS Bank regarding Bank account number [redacted]

d) The name and details of the bank account into which the 10 years of unbanked dividend cheques were deposited, along with bank statements showing the deposit of these cheques;

e) The identity and qualifications of the person engaged by the Respondents to perform valuations of the estate's overseas assets along with any reports, correspondence, or other documents produced by such engaged person.

The list of all actions taken and decisions made by Anna Lewis relating to or on behalf of the (Singapore) estate.

50 The discovery summons was made returnable on 8 October 2024, and was heard and determined at the commencement of the hearing. As a consequence, I made the following orders ('discovery order'):

By 4:00pm on 6 November 2024, the plaintiffs discover and produce the documents falling within the following categories of documents:

1. bank statements evidencing the source of the receipts referred to in paragraphs 29, 32, 33 and 34 of the administration account exhibited to the affidavit of the first applicant filed on 16 February 2024;

b. correspondence with DBS Bank regarding Account [redacted]; and

1. any reports and/or valuations produced by any firm or person engaged by the executors as referred to in paragraph 31 of the affidavit sworn by the first applicant on 12 February 2024.

51 I also made orders permitting the parties to file further written submissions arising from any further discovery.

52 On 31 October 2024, the executors filed a further affidavit of documents along with Natalia's fifth affidavit, in which Natalia deposed as follows:

In the course of compliance with the Court's Order dated 8 October 2024 I am disclosing a redacted copy of two pages of the passbook for my personal Singaporean passbook account number [redacted] with DBS Bank Ltd (the passbook account). I make this affidavit to explain the circumstances in which dividends from my father's Singaporean shares were paid into this account prior to onward transmission to the estate's Australian account number [redacted] with CBA.

53 Natalia deposed that when she and Anna visited Singapore in November 2019 for the purpose of realising the overseas shares and other foreign assets of the estate, she was told by one of the brokers that the dividend funds needed to be deposited into a local bank account in the name of the executor of her late father's will. No such account existed, and she was informed that the process of establishing a new account would be onerous and time consuming. On the advice of the broker, who also obtained the necessary approvals from the Singapore Stock Exchange, she decided to have the dividend funds paid into her personal account.

54 Natalia deposed that the dividend funds were deposited into her personal account in three tranches on 9 December 2019, 19 October 2021, and 16 June 2024. These funds (plus an amount paid into the account from the estate's Singaporean lawyers) were transferred to the estate's Australian bank account on 22 August 2022.

At the time I mistakenly presumed that all of the money transferred from the passbook account related to the dividends and so, after deducting the agreed $50,000 to cover the estate's legal fees as per the deed of family arrangement, I distributed the whole remaining balance of $434,381.33 between Tanya, Daria, Anna and I as envisaged by the deed. However, after my recent trip to Singapore when the passbook was updated I noticed that the A$ equivalent of the Tan Leroy refund of S$4,847.84 should also have been deducted and distributed amongs [sic] the general beneficiaries in accordance with the will. At the implied rate of S$1 = A$1.04 used by DBS when it made the transfer from the passbook account to the CBA account, this means that $5,041.75 must be clawed back from Tanya, Daria, Anna and I and distributed between the ten beneficiaries under the will. This will be done by adjustment of the final payments made by the estate.

56 Unsurprisingly, the information in Natalia's fifth affidavit provoked a heated response from Tanya and Daria. Tanya's fifth affidavit covered some ground already canvassed in her earlier affidavits and submissions, such as the rationale for issuing the Singapore proceeding, her reason for not executing the deed until late August 2021, whether all of the properties beneficially owned by the deceased were included in the estate, and the conduct of the executors and Anna during the course of the Singapore proceeding. However, much of Tanya's fifth affidavit concerned Natalia's disclosure that some of the dividend funds had been held in her personal bank account in Singapore between 2019 and 2022 ('Singapore bank account issue').

57 Tanya deposed that the disclosure of the Singapore bank account issue provided further evidence in support of her contention that the executors:

have committed serious breaches of their fiduciary duties, characterised by:

- Systematic concealment of estate assets;

- Misrepresentation to beneficiaries and the Court;

- Non-compliance with Court orders; and

- Failure to maintain proper estate records and accounting.

The breaches are particularly grave due to:

- The substantial sums involved (SGD $460,877.00);

- The extended period of concealment (2019-2022); and

- The necessity of Court intervention to reveal the truth.

58 Tanya deposed that Natalia's evidence concerning the Singapore bank account issue contradicted Natalia's prior sworn statements, information Tanya has obtained about the ease of opening a bank account for an estate in Singapore, and the interim administration account filed by the executors with this Court in April 2020. She deposed that the deposit of the dividend funds into Natalia's personal account breached various regulatory requirements and communication protocols, and there is missing documentation regarding the transfers of the dividends to Natalia's account.

59 Tanya also referred to what she said were contradictory statements in Natalia's first affidavit and in the correspondence exhibited to Natalia's fifth affidavit regarding a Singapore bank account in the name of the daughter beneficiaries' late father. Tanya deposed that Natalia failed to act diligently by not obtaining further information regarding this bank account during her recent trip to Singapore, and that the executors have failed to comply with their disclosure and reporting obligations under the deed. She deposed that the executors have failed to comply, without explanation, with the part of the discovery order requiring the executors to discover any reports or valuations produced by any party engaged by the executors to value the overseas shares, as referred to in Natalia's first affidavit. Tanya deposed that the available evidence raises questions as to whether all of the dividends from the overseas shares have been received by the estate.

These systematic breaches, as evidenced by the produced documents, demonstrate misconduct that exceeds those found in both Re Buckingham [2016] VSC 757 and In Re Estate of Badstuebner [2020] QSC 144, where commission was denied for similar, though less egregious, conduct. The executors have demonstrated:

- Non-compliance with court orders, the family deed.

- Unauthorised diversion of estate funds $460,877.00 into first applicant's private account.

- Misrepresentation to the Singapore High Court.

- Systematic misrepresentation in the first applicant's sworn affidavits to the Victorian Supreme Court and the Probate Office.

- Material discrepancies between sworn statements and subsequent evidence, raising serious concerns about truthfulness in court submissions.

- Failure to maintain proper estate records and accounting.

- Withholding of critical financial documentation particularly regarding SGX Share statements and dividend documentation despite clear opportunities and obligations to obtain them.

- Deliberate misrepresentation of estate property ownership

- A pattern of conduct that undermines both their roles as executors and their fitness to serve as guardians of the Family Trust

Your Honour, it is respectfully submitted that granting commission in these circumstances would not only condone documented breaches of fundamental fiduciary duties but would further diminish the estate assets of beneficiaries who have already borne significant costs from their executorship.

61 Tanya requested that the Court make the following orders:

1. That both applicants be removed from their positions as Executors of my mother's Estate.
2. That the Executors be directed to fulfil Order 1(c) [of the discovery order]: (a)To provide all reports and/or valuations produced by any firm or person engaged by the executors (regarding the proper valuation of all overseas shares and dividends; (b) specifically, to provide all statements related to SGX Share statements and dividend documentation, as these statements are vital for performing an accurate valuation of the overseas valuation of all the Singapore shares and benefits by the person engaged by the executors.
3. That the VCAT order to produce Family Trust books for audit be enforced, noting the executors' continued non-compliance with this order;
4. That all unauthorised property and financial transfers from the Family Trust be restored to the trust.

62 Exhibited to Tanya's fifth affidavit were, among other things, documents supporting Tanya's contention that opening bank accounts for deceased estates in Singapore is a relatively straight-forward matter, the administration account filed by the executors in April 2020, which made no reference to the dividend funds in Natalia's Singapore bank account, and selected emails between the daughter beneficiaries regarding the Singapore proceeding.

63 Finally, at the hearing on 8 October 2024, three documents were handed up by the parties without being exhibited to any affidavit. The first document, headed 'Maria Joanna Rajendran died 9/6/2018' was prepared by Tanya and/or Daria, and was intended to demonstrate delays on the part of the executors in realising the assets of the estate, and further delays in making distributions to the beneficiaries. The second document extracted a number of entries for disbursements from the administration account, some of which were highlighted in red, and some of which were annotated as being 'questionable expenses'. The third document, being the spreadsheet prepared by the executors' solicitors, which appears to have been based upon the administration account, shows that the expenses of the estate (that is, the payments made from the estate for purposes other than distributions to the beneficiaries) up to 18 October 2023 totalled $1,112,117.78.[12]

It shall be lawful for the Court to allow out of the assets of any deceased person to his executor ... such commission or percentage not exceeding Five per centum for his pains and trouble as is just and reasonable.

65 'Pains' has been described as the 'responsibility, anxiety, and worry' associated with an executor's role and 'trouble' as the practical work of the administration.[13]

66 Relevantly for the purposes of the current application, s 65D of the Act prescribes what information must be provided to beneficiaries by executors making a claim for commission. Section 65D of the Act provides as follows:

(1) As soon as reasonably practicable, an executor of a will who seeks to be paid must inform each interested beneficiary of the following -

(a) the basis on which the executor is to be paid, being either in accordance with -

(ii) with the consent of the interested beneficiaries under section 65C; or

(iii) an order of the Court made under section 65;

(b) the method of calculation of the payment to be made to the executor, including whether the payment will be -

(i) a commission or percentage of the assets of the estate and, if so, the applicable commission or percentage; or

(ii) by charging fees;

(c) the estimated value of the payment to be made to the executor;

(d) the right of any interested beneficiary to have the payment claimed or charged by the executor reviewed by the Court under section 65A(2)(a)(i).

(2) If an executor of a will becomes aware that there is likely to be a substantial change in the amount referred to in subsection (1)(c), the executor must inform each interested beneficiary of the change as soon as reasonably practicable.

(3) The information given to each interested beneficiary under subsections (1) and (2) must be in plain language and -

(a) in English, or in another language if the interested beneficiary does not have sufficient knowledge of the English language; and

(b) verbally if an interested beneficiary is illiterate.

(4) An executor must make reasonable efforts to provide the information in subsection (1) or (2) to -

(a) the parent or guardian of a minor who is an interested beneficiary;

(b) the guardian, administrator or attorney of an adult who does not have legal capacity or decision making capacity and is an interested beneficiary.

(5) An executor who contravenes this section is not entitled to payment from the estate of -

(a) a commission or percentage of the assets of the estate; or

(b) fees.

(6) This section does not apply to an executor that is a trustee company.

67 In assessing the appropriate quantum of commission, the Court may have regard to the following:

(a) the work and judgement involved in the realisation of assets and earning income;

(b) the extent of administrative activities;

(c) the responsibility generally;

(d) the amount of work done not reflected in financial terms;

(e) how long the estate was administered;

(f) the size of the estate and its capacity to pay;

(g) the work of a non-professional character not undertaken by the applicant and performed by professionals; and

(h) executor's pains and troubles relative to the result.[14]

(a) whether there has been any litigation, or other conflict, in relation to the administration of the estate;[15] and

(b) whether there has been any delay in the administration of the estate, as 'such conduct may disentitle or reduce an executor's commission'.[16]

69 In Re White; Tweedie v Attorney General,[17] Kellam J held that where the Court is satisfied that there has been no impropriety or maladministration, 'in a proper case' as a matter of statutory construction s 65 of the Act 'grants unfettered discretion to allow such remuneration as is fair, just and reasonable in all the circumstances of that case...'.[18]

70 While the Act permits an award of commission of up to five percent, in practice 3.5 percent is considered to be at the upper end of the scale.[19]

71 In their submissions, the objectors referred to a decision of McMillan J in Re Buckingham[20] as being relevant to the application, on the basis that the executors' conduct in the administration of the estate in Re Buckingham[21] ('Buckingham estate') was analogous to the conduct of the executors with respect to the administration of the estate. Her Honour determined that no award of commission for the executor's pains and troubles was appropriate, in circumstances where the Buckingham estate, while substantial, was quite simple. Her Honour also found that:

(a) the accounts of the Buckingham estate remained incomplete, and a further amended account had raised even further queries;

(b) the executor had claimed for work done to arrange for the transfer of the only real estate in the Buckingham estate to himself;

(c) most of the work had been done by solicitors and accountants; and

(d) he had delayed in realising the assets of the Buckingham estate, causing significant losses to the estate, and, according to her Honour:

Any alleged stress suffered by the executor that he claims to have suffered is the result of his own conduct in his management of the estate, commencing from the death of the deceased and his failure to administer it in a timely manner.[22]

In these circumstances, the executor ought not be rewarded for his administration of the estate as it includes substantial delays, withholding of information concerning the administration of the estate, providing confusing and inaccurate administration accounts, claiming for a significant amount of time for work done for his own benefit and failing to administer the estate in a timely and cost effective manner, causing significant financial loss to Peter and Anne. The combination of all of these factors removes any basis for the executor receiving even a small amount by way of commission.[23]

73 The executors submitted that the administration of the estate was complicated by:

(a) the size of the estate;

(b) the deceased's paperwork being in disarray;

(c) the need to reseal the grant of probate in Singapore;

(d) dealing with the overseas shares and the dividend funds;

(e) dealing with the Singapore proceeding;

(f) calling in a $6 million dollar loan from the family trust, which required the family trust to sell various properties; and

(g) complying with the show cause notice and carrying out extensive works on the Camberwell property prior to its sale.

74 The executors submitted further as follows (omitting references to the evidence):

The administration was characterised by harassment and interference from Daria and Tanya, whose aggressive and hostile conduct has made the administration extremely arduous. That aggression and hostility originated during the later years of the deceased's life, when there was discord between the sisters about their mother's care and baseless allegations by Daria and Tanya that Anna had misappropriated their mother's funds: It continued in unrelenting fashion for the duration of the administration. By way of illustration:

(a) allegations by Daria and Tanya that Anna and Natalia may have caused their mother's death;

(b) Tanya's probate caveat and passing over application in the Supreme Court of Victoria;

(c) baseless allegations that jewellery had been stolen;

(d) Daria's and Tanya's refusal to remove their property from Camberwell and related threats made by them;

(e) Tanya's proceeding against the plaintiffs regarding the [overseas] shares in the Singapore High Court which extended for 18 months;

(f) Unreasonable and oppressive requests for information regarding the [overseas] shares;

(g) Baseless and offensive allegations of misconduct and fraud.

In addition, there was the pressure, stress and anxiety associated with the administration of a large and uniquely comprised estate.

Not surprisingly, Natalia deposes that her responsibilities took an extensive toll on her. She notes that the sheer volume of work was difficult enough, but has been greatly compounded by Daria's and Tanya's behaviour. Importantly, the court will note that the experience has caused health issues: headaches, sleeplessness and hair loss...

75 The executors also noted that they had obtained limited professional assistance in discharging their executorial duties.

76 Each of the objectors filed separate submissions, and the contents of these submissions overlapped with the submissions made by each other and the affidavit evidence relied upon by the objectors. The objectors submitted that there are discrepancies in the valuation of the estate, including the overseas shares, that there were unjustifiable delays and mismanagement in the administration of a relatively simple estate, and that there was a lack of transparency and proper accounting in the administration of the estate. The objectors also made a number of specific complaints regarding the conduct of the executors and the administration of the estate, and criticised the manner in which the commission request was made as being 'coercive'.

77 Daniel submitted that there had been a gross misrepresentation of the value of the overseas shares by the executors. At the time of the Singapore proceeding, Natalia told him that the overseas shares were valued at approximately $1.5 million. However, the Singapore shares were sold for approximately $4.5 million. Daniel submitted that the executors' conduct has not been impartial, and certain beneficiaries, namely Anna, have been given preferential treatment by the executors. The executors' conduct has been characterised by the misrepresentation and mismanagement of estate assets, apparent conflicts of interest, unjustifiable delays and a lack of transparency, and as such does not merit remuneration.

78 Sarah submitted that the request for executors' commission was improper, as it was excessive, lacked transparency, and was expressed in coercive terms. The commission request pressured the beneficiaries to accept the claim for commission of 1.5 percent by suggesting that the Court could award up to 5 percent in executor's commission, and that the executors would seek a 3 percent commission if the beneficiaries failed to reach agreement. Daria made the same submission, adding that the executors have treated the estate funds as their own by using them to file the application.

79 Sarah also submitted that Mr Brand breached his professional obligations by failing to advise the beneficiaries to seek independent legal advice prior to responding to the request for commission.

80 Sarah and Daria submitted that while the estate was significant in value, it should have been simple to administer. The estate consisted largely of liquid assets and did not have any significant liabilities. The overseas shares were consolidated into two accounts and were managed by the brokers. As such, the rate of commission sought by the executors is unreasonable.

81 The objectors submitted that the administration of the estate has suffered from unjustifiable delays and mismanagement, as follows:

(a) the estate has not yet been finalised more than five years after probate of the will was granted;

(b) there were significant delays in selling the Camberwell property which resulted in unnecessary costs being incurred by the estate for rates, water, land tax and repairs. The Camberwell property could have been sold in its existing condition and the show cause notice did not need to delay or prevent its sale;

(c) the first request for commission was made when approximately $2 million remained in the estate, and the application has delayed the administration of the estate;

(d) any disarray in the deceased's records are attributable to Natalia as she had managed the deceased's financial affairs since 2010;

(e) the executors' handling of the deceased's jewellery, including the missing items which Daria and Tanya submit should have been reported to the police, and the failure to obtain a professional valuation, resulted in a potential loss to the estate and an unfair distribution of assets among the beneficiaries; and

(f) the Singapore proceeding was prolonged by the executors' own actions, including refusing to accept service of the claim, filing an amended defence, disputes over the value of the overseas shares, disregard for the mediation process and purported conflicts of interest.

82 The objectors submitted that the hours claimed by Natalia in the claim for executors' commission are excessive, imprecise and unreliable. For example, Natalia claims 144 hours of work undertaken in the estate administration for her travel to Singapore. However, during this visit, Natalia spent time visiting family and friends and as such the hours recorded do not accurately reflect the time spent on estate matters. Similarly, Natalia claims that extensive work was required to clear the Camberwell property in preparation for auction, but, Tanya submitted that on auction day, the Camberwell property was still filled with furniture and rubbish.

83 Tanya submitted that Mr Brand failed to protect the beneficiaries' interests by not investigating the properties held by the deceased, relying solely on the accounts of Natalia and Anna, both conflicted parties, without independent verification,[24] and by insisting that all communications go through Natalia's private email address.

84 Tanya submitted that Anna has had a significant and improper involvement in the administration of the estate, including participating in legal discussions about the deceased's testamentary capacity and misrepresenting the position to VCAT by stating that she did not have access to the overseas shares.

85 In their written submission in reply, the executors submitted, in summary, as follows:

(a) Daniel's assertion that the executors misrepresented the value of the overseas shares has no basis, as the beneficiaries were advised to obtain their own legal advice, the deed was executed by all beneficiaries and included particulars of the shares and dividends, and Daniel, who is a surgeon, is not an unsophisticated person;

(b) there was no preferential treatment of particular beneficiaries;

(c) the recommendation in the commission request that the beneficiaries seek legal advice in response to the request for executors' commission was not evidence of preferential treatment, but was in fact proper and appropriate in the circumstances;

(d) the allegations of delay, mismanagement and a lack of transparency are unsubstantiated;

(e) the commission request was not improper. It was made under cover of email from the executors' solicitors in February 2023, included a link to the administration account and supporting documentation, and complied with s 65D of the Act;

(f) Sarah's submissions failed to specify specific instances of the alleged unjustifiable delays and mismanagement of the estate, and the delays in selling the Camberwell property were explained in Natalia's first affidavit;

(g) the administration account provides a clear valuation of the estate and Daria has been provided the opportunity to inspect the estate records on several occasions;

(h) the executors' records of the time spent on the estate's administration are accurate;

(i) the executors are unable to recover or reinstate items from the deceased's jewellery collection that Daria claims to be missing; and

(j) Tanya's submissions deal with matters prior to the deceased's death and before the administration commenced which are not relevant to this application.

86 At the hearing on 8 October 2024, I heard and determined the discovery summons, and then went on to hear the parties' submissions upon the application itself. In his oral submissions, counsel for the executors submitted, in summary, as follows:

(a) the administration took place in an atmosphere of adversarial family relations and hostility;

(b) Natalia in particular undertook a huge volume of work in relation to a large estate;

(c) he pointed to the terms of the deed in which each of the beneficiaries warranted that they had received legal and tax advice prior to executing the deed;

(d) it is unclear how it is said that some beneficiaries were preferred over others, or why it was improper for the executors to advise the beneficiaries to get legal advice about the deed and the application;

(e) there was nothing untoward in the commission request;

(f) Natalia has explained the delay in selling the Camberwell property;

(g) there is no basis for asserting that Natalia holds certain properties on trust for the estate;

(h) there are no deficiencies in the assets of the estate. Natalia herself has repaid some money to the estate;

(i) there are some items in the income account of the estate which should be included in the corpus account; and

(j) the claim for commission of 1.5 percent is reasonable in all of the circumstances.

87 In their oral submissions, Tanya and Daria submitted, in summary, as follows:

(a) the estate was very simple, and its administration has been delayed for over five years, resulting in unnecessary expenses and lost opportunities;

(b) any complications in the administration of the estate arose from the executors' own decisions;

(c) the simplicity of the administration of the estate is demonstrated by the fact that once the two properties were put on the market, they were sold within a matter of weeks;

(d) the passing over proceeding and the Singapore proceeding should not be taken into account when awarding commission, because Natalia benefited personally from both proceedings;

(e) they referred to the family trust and the informal trust arrangements within the family, and said that as executor, Natalia had a conflict of interest;

(f) Anna had a disproportionate and improper involvement in the administration of the estate;

(g) they complied with the deadline imposed by Natalia for the removal of their belongings from the Camberwell property;

(h) all of their enquiries of the executors were properly made;

(i) there were unexplained delays in making distributions from the estate, and a significant delay in selling the Camberwell property, which caused the estate to incur expenses of $130,000;

(j) the Camberwell property could have been sold subject to the show cause notice, and when it was sold, it was sold in a state and in circumstances which may have resulted in it being sold at an undervalue;

(k) they queried some of the invoices paid by the estate, and observed that many cheques payable to the estate remained unbanked;

(l) they referred to Natalia's alleged misrepresentation about the value of the overseas shares;

(m) the role of the executors in assisting Anna defend the VCAT proceedings was not in the interests of the estate;

(n) the requirement that they could only inspect the books and records of the estate at Natalia's home was unreasonable;

(o) the appointment of Mr Brand as executor reflected the deceased's intention that there should be professional, impartial management of the estate compensated by professional fees;

(p) the commission request was improper;

(q) Natalia's contentions about her alleged pains and troubles are not supported by evidence, and her communication style is insulting and aggressive; and

(r) the executors have failed to distribute the balance of the estate.

88 In reply, counsel for the executors submitted, in summary, as follows:

(a) an email from Natalia to the beneficiaries on 3 January 2020 regarding the Singapore proceeding demonstrates that, far from seeking to benefit from the Singapore proceeding, Natalia was concerned about the impact of the Singapore proceeding upon the timely administration of the estate;

(b) the Camberwell property was sold by public auction, and anyone was entitled to bid for the property;

(c) Mr Brand can no longer charge professional fees, because he no longer holds a practising certificate;

(d) the application has become a vehicle for the objectors to pursue their personal enmities; and

(e) the executors are volunteers, and did the best job they could be demanding circumstances.

89 As noted earlier in these reasons, the parties were provided with the opportunity to file further written submissions following the further discovery made by the executors in compliance with the discovery order.

90 Daria filed further submissions on 29 November 2024 and 30 November 2024, although the latter merely attached some documents referred to in the submissions filed the day before. Daria submitted, in summary, as follows:

(a) she adopted the contents of Tanya's fifth affidavit (see paragraphs 56 to 62 of these reasons)

(b) she summarised her 'key concerns' as follows:

The evidence before the Court reveals a systematic pattern of:

• Deliberate concealment of substantial estate assets

• Unauthorised diversion of estate funds

• Material misrepresentation of estate values

• Discriminatory treatment of beneficiaries

• Professional misconduct in trust management

• Non-compliance with Court orders

• Pattern of deliberate concealment.

(c) she said that the Singapore bank account issue and the failure of the executors to disclose the dividend funds in the interim administration account amounted to a serious breach of their fiduciary duties; and

(d) she believes there is a shortfall in the dividend funds, given the value of the overseas shares.

91 Daria also submitted that upon review of specific invoices requested from the executors' solicitors, she has identified payments from the estate which were not authorised by the will, including receipts from Priceline pharmacy said to be gifts for the deceased's carers, an invoice for bookkeeping for the purposes of the VCAT proceedings issued by Anna's daughter, and an invoice for gardening services at the Camberwell property issued by Anna's husband.

Given these substantial breaches of fiduciary duty, and considering that the applicants assumed their roles as executors of the will, we respectfully seek further orders:

1. That the Executors be directed to fulfil Order 1 (c) [of the discovery order], specifically: a) To provide all reports and/or valuations produced by any firm or person engaged by the executors (regarding the proper valuation of all overseas shares and dividends;) and b) In particular, to provide all statements related to SGX dividends, as these statements would be vital for performing an accurate valuation of the overseas assets.
2. Concerns of deliberate mishandling of estate money and deliberate attempt to conceal monies belonging to the estate.
3. That both applicants be removed from their positions as Executors of my mother's Estate, given their demonstrated serious breaches of fiduciary duty and trust. The removal of Sujatta Rajendran and Andrew Brand will safe guard the family trust which has been handled in the same way as they have handled my mother's will, with lack of transparency and breaches of fiduciary duties.

93 The executors filed further submissions in reply on 13 December 2024. In their submissions, the executors summarised the evidence deposed to in Natalia's fifth affidavit, and went on to submit as follows:

It goes without saying that it is undesirable for an executor to pay estate monies into her own account. However:

(a) as far as the first plaintiff could ascertain, there was no viable alternative to having the dividends paid into her personal account, given the information provided to her by professionals upon whom she was relying at the time;

(b) in due course, the entire sum was transferred into the estate account in Australia and distributed to the beneficiaries.

Further, whilst there was some delay in transferring the funds received in Singapore back to Australia, this needs to be seen in its proper context. The funds could not be distributed until the family dispute regarding the shares and dividends was resolved. That did not happen until the deed of family arrangement was executed on 1 September 2021. Payments under the deed were not due until 2022.

94 In response to Daria's submissions of 29 November 2024, the executors submitted as follows:

(a) the first plaintiff deliberately concealed estate funds in her private bank account for over three years. This is rejected. The circumstances in which the dividends were received into the first plaintiff's personal bank account have been fully disclosed and the proper characterisation of the events is set out at [3] and [4], above;

(b) an interim account made by the executors in April 2020 did not disclose the sums held in the personal passbook account . This allegation ignores the fact that the funds have been accounted for . They were transferred to the estate's CBA account in Australia, distributed to the beneficiaries and accounted for in the estate administration account filed with the court and dated 12 February 2024. If there was a failure to include the Singaporean monies in an interim account, no conceivable prejudice arose from the oversight;

(c) certain sums were paid for gifts to the deceased's carers, bookkeeping related to a VCAT proceeding and accounting services. In the context of an estate of over $15m, the sums involved are extremely minor and appear to relate not to the estate administration but to a VCAT proceeding which occurred before the deceased died. That they are being raised in this application speaks volumes about the troubles and pains which the plaintiffs have endured.

95 For completeness, also on 13 December 2024, Tanya filed further written submissions, without leave. In these submissions, Tanya referred to the executors' failure to comply with paragraph 1(c) of the discovery order, which she said suggests that Natalia made false statements in Natalia's first affidavit.[25] Tanya also rejected the executors' assertion that the executors had 'accounted' for the dividend funds, and that the delay in transferring the dividend funds to Australia was caused by the Singapore proceeding, given that the first tranche of the dividend funds was paid into Natalia's account in 2019, prior to the issue of the Singapore proceeding.

96 To recapitulate, the issues in the application are as follows:

(a) is an award of commission justified by the work done by the executors; that is, their 'troubles';

(b) is an award of commission justified by the circumstances in which the administration of the estate was carried out; that is, the executors' 'pains'; and

(c) was there disentitling conduct on the part of the executors which ought deny them any entitlement to commission, or at least warrants a reduction in the amount of commission payable?

97 In relation to the executors' 'troubles', the objectors made the following submissions:

(a) the time said to have been spent by the executors on various tasks was unsubstantiated;

(b) the work claimed for included tasks which were not connected with the administration of the estate;

(c) the estate, despite being large in size, was relatively simple to administer, and not a great deal of work was required to administer the estate;

(d) on the proper construction of the will, the deceased never intended, and the will did not permit, the payment of any commission over and above charges for professional services; and

(e) the executors were compensated for at least part of their work by reason of a provision of the deed which provided that they received $50,000 for their costs of the Singapore proceeding and the preparation of the deed.

98 The objectors did not make any specific submissions regarding the 'pains' suffered by Natalia in their submissions, but implicit in their submissions were two propositions: the first being that the queries and complaints made by Daria and Tanya during the course of the administration of the estate were entirely reasonable and justified, and the second being to the effect that any stress or anxiety suffered by Natalia arose from her own conduct.

99 As for the allegations of disentitling conduct, the objectors' complaints can be categorised as follows:

(a) the manner in which the commission request was made;

(b) delays in the administration of the estate;

(c) the lack of transparency in the administration of the estate, including the Singapore bank account issue;

(d) discrepancies in the estate's accounts, and complaints regarding the missing jewellery and the allocation of jewellery;

(e) questionable payments being made from the estate;

(f) complaints regarding preferential treatment towards certain beneficiaries, in particular Anna; and

(g) misrepresentations made to the beneficiaries regarding the value of the overseas shares.

100 My conclusions in relation to the claim for commission, insofar as it seeks compensation for the executors' 'troubles', are as follows:

(a) while I accept that the executors have not kept detailed records of the time they have spent upon various tasks, they are not necessarily required to do so, and I have no reason to question the veracity of the executors' evidence in that regard;

(b) part of the work done by Natalia concerned tasks which were outside the scope of the administration of the estate, and ought not to be taken into account when evaluating the executors' entitlement to commission and the quantum of that commission, at least insofar as the commission is awarded as recompense for the executors' 'troubles';

(c) while the complexity of the administration of the estate was not at the higher end of the range, it was not as simple as contended for by the objectors. In my view, it was a moderately complex estate to administer; and

(d) neither the terms of the will, nor Mr Brand's role as the deceased's solicitor, nor the terms of the deed precluded the executors from making an application for commission under s 65(1) of the Act.

101 To explain further in relation to (b) above, in my view, Natalia should arguably not be permitted to rely upon tasks she carried out to assist Anna with her defence of the VCAT proceedings, or dealing with what Natalia described as the 'unfounded allegations' concerning the medical treatment of the deceased prior to her death. These tasks fell outside the scope of her role as executor. Based upon the table exhibited to Natalia's first affidavit, eliminating these tasks would reduce the number of hours claimed by Natalia from 680.25 hours to 671.25 hours (or approximately 85 business days to approximately 84 business days).

102 The objectors criticised Natalia for claiming 144 hours for making a trip to Singapore in November 2019 ('Singapore trip'), on the basis that she also took the opportunity to visit family and friends during the trip. However, that criticism ignores the fact that the trip was necessitated by Natalia's role as executor: that is, but for her role as executor, she would not have been required to undertake the Singapore trip. She spent seven business days in Singapore, including travel time, and accordingly should be permitted to claim 56 hours for the Singapore trip.

103 Accordingly, the total amount of time claimable by Natalia on estate related tasks is 583.25 hours, or approximately 73 business days. This amounts to approximately 14.6 weeks over a period of four years, or three and a half weeks per year.

104 By way of comparison, Mr Brand estimates that he spent up to 48.5 hours (approximately six business days) on estate related work. There is no reason to doubt the accuracy of Mr Brand's estimates.

105 While the authorities make it clear that a claim for commission is not to be treated as akin to a claim for fees for professional services,[26] identifying a notional hourly rate does put the quantum of the claim for commission into some perspective. The executors claim the sum of $243,669.29, being 1.5 percent of corpus and income less the fees paid to Mr Brand's former firm. Based upon the reduction I have made to the hours claimed by Natalia, the claim for commission equates to an hourly rate of approximately $386 per hour for what was largely clerical or administrative work, time spent consulting with solicitors, other professionals and each other, and carrying out tasks of a quasi-domestic nature, such as sorting through the deceased's belongings, and preparing the Camberwell property for sale.

106 As for the objectors' contention that the administration of the estate was, or should have been a simple task, in my view, it was a moderately complex estate. While there were only two real properties in the estate, I accept that the sale of the Camberwell property was not a simple exercise, given its heritage listing, its state of disrepair, and the need to respond to the show cause notice. While this issue is discussed at greater length later in these reasons, in my view, the course of action taken by the executors with respect to the sale of the Camberwell property was reasonable in all of the circumstances, save that the delay in commencing to prepare the Camberwell property for sale until about 2021 is unexplained.

107 Further, I accept that the need to deal with the overseas shares and the dividend funds, in the circumstances where the deceased had clearly failed to do anything about regularising the ownership of the overseas shares and collecting the dividend funds after the death of her late husband, was a matter that required some attention from the executors, as did the Singapore proceeding, and the need to recover the debts owed to the deceased by the family trust.

108 As for the objectors' contention that the claim for executors' commission was not authorised by or was indeed precluded by the terms of the will, I reject that submission. The will made no reference to any entitlement to claim commission. However, the executors have brought a claim for commission pursuant to s 65(1) of the Act. The entitlement to claim commission is an independent statutory entitlement over and above any entitlement which may arise under the terms of the will. Indeed, the very purpose of the provision is to enliven the discretion of the Court in circumstances where a will is silent on the question of commission.

109 As for the charging clause in the will, I accept the executors' submissions that Mr Brand did not, and indeed, given that he is no longer a practising solicitor, could not claim any renumeration under the charging clause. The question of whether Mr Brand is 'double-dipping' has been resolved by the executors' concession that any fees paid to Wood Fussell for their work in administering the estate should be deducted from any commission ultimately awarded by the Court.

110 Finally, I do not consider that the clause in the deed which provided that the executors receive $50,000 for their costs in connection with the preparation, negotiation and execution of the deed precludes the executors from being awarded commission, or from taking into account the pains and troubles incurred by the executors in connection with the Singapore proceeding when calculating the appropriate amount of commission to award. It is clear from the relevant clause of the deed that the payment of $50,000 was for the executors' legal costs, not the time spent by them personally.

111 When analysing the work done by the executors on the administration of the estate, it is helpful to break down what occurred and what was required on a year by year basis, commencing with the application for the grant of probate of the will, which was lodged on 25 September 2018, and the realisation of the last significant asset of the estate in December 2022.[27]

• arranging the deceased's funeral and associated tasks;
• collating information for the inventory;
• responding to the passing over application;
• cataloguing and allocating jewellery and other personal possessions;
• collecting health insurance and other refunds; and
• clearing and preparing the Canterbury property for sale.

• obtaining valuations of deceased's personal possessions;
• the closure of deceased's Australian and Singapore bank accounts and her superannuation account, transmission of the Colac property and the Camberwell property to the executors, arranging for the refund of the accommodation bond;
• the sale of the Canterbury property;
• the sale of Australian shares and the repayment of the deceased's margin loan;
• the visit to Singapore; and
• receiving repayments of loans from the family trust.

• dealing with the show cause notice;
• Singapore proceeding issued and defended, mediation held;
• the sale of the Colac property; and
• distributions made to the beneficiaries.

• Daria and Tanya remove their furniture from Camberwell property;
• negotiating the terms of and arranging for the execution of the deed; and
• consulting with architects and other professionals and the Heritage Council, arranging repairs and other works at the Camberwell property.

• further works at the Camberwell property;
• the sale of Camberwell property;
• the sale of the overseas shares, further Australian shares and repatriation of the dividend funds;
• recovery of loans made to the trustee; and
• further distributions to beneficiaries.

112 As can be seen from the above, while I accept that the administration of the estate involved quite a bit of work, and at times, reasonably intense work, the tasks required to be carried out by the executors in the administration of the estate do not appear to be quite so burdensome as contended for by the executors, particularly given the period of time over which the work was done, and given that many of the assets of the estate were in liquid form. My findings in that regard will be taken into account when determining the quantum of any commission.

113 As for the question of the executors' 'pains', or the anxiety and aggravation said to have been suffered by Natalia in particular by reason of the conduct of the objectors, and in particular, Tanya and Daria, there is some overlap between this issue and the issue of whether the executors, or either of them, engaged in any disentitling conduct. The objectors say that, to the extent that the acrimony between the daughter beneficiaries caused Natalia anxiety and stress, this acrimony was caused by Natalia's high handed behaviour towards them. In short, they say that she was the author of her own misfortune.

114 I will address the specific complaints made by the objectors against the executors in the section of these reasons dealing with the alleged disentitling conduct of the executors. However, when it comes to the 'pains' suffered by the executors during the course of the administration of the estate, I would make the following observations:

(a) while Mr Brand deposes as to his views as to the conduct of some of the beneficiaries towards Natalia, he does not depose to having suffered any particular anxiety or discomfort owing to his role as a co-executor of the estate. Further, as a former solicitor, he would be accustomed to dealing with family conflict and the need to responsibly make difficult decisions. Further, it seems from the evidence that Mr Brand did not play a particularly active role in the administration of the estate. Accordingly, the 'pains' were largely borne by Natalia alone;

(b) some of the events and communications relied upon by Natalia pre-dated the grant of probate, such as the correspondence in 2015 between Natalia, Daria and Tanya about removal of their belongings from the Camberwell property, the events leading up to and the subject matter of the VCAT proceedings, disputes concerning the deceased's medical care, including the complaint made to the Coroner, and issues relating to the family trust. While some of this evidence highlights the divisions and disputes within the family, these issues and disputes did not concern Natalia's role as executor;

(c) the impact of some of the matters relied upon by Natalia, such as the disputes regarding the allocation of jewellery and whether a police report ought to have been made about the missing jewellery, and the delays in removing belongings from the Camberwell property seem to have been somewhat overstated by Natalia. While these issues were no doubt tiresome to deal with, they do not seem to me to be particularly stressful or arduous issues to address, and Daria and Tanya removed their belongings from the Camberwell property well over a year before the Camberwell property was sold;

(d) while it may be that there was other correspondence during the course of the administration of the estate which is not in evidence, it is clear that the conflict between the executors and Tanya and Daria escalated quite considerably after the executors made a claim for commission; and

(e) the hostility evident from the combative and accusatory nature of the correspondence between the executors and Daria and Tanya was not directed all one way. Each of the daughter beneficiaries were quite capable of delivering insults to the others, with Natalia, for example, referring to Tanya as 'irresponsible', as a 'fool', and engaging in 'dishonest' and 'stupid' tactics in connection with the issue of the Singapore proceeding.[29] While Natalia may have felt that her anger and frustration towards Tanya and Daria was justified, the portrayal of herself as the innocent victim of merciless bullying is a little overstated.

115 That said, if the approach taken and language used by the objectors in the materials filed in this application was reflected in all of the communications between Natalia and the objectors during the course of the administration of the estate, I accept that Natalia's dealings with Daria and Tanya's accusations would have caused her stress and anxiety. After all, while the objectors could choose whether or not they sought to engage with the executors, Natalia, as executor, had no choice as to whether to deal with the beneficiaries.

116 Further, I agree that the Singapore proceeding, dealing with the show cause notice and preparing the Camberwell property for sale would also have been productive of stress and anxiety.

117 In the Singapore proceeding, which was commenced by Tanya in about March 2020, Tanya claimed that the overseas shares and the dividend funds did not form part of the estate, but rather were held on trust for the daughter beneficiaries as a consequence of statements made and agreements reached during the course of their late father's lifetime. The executors defended the proceeding on the basis that the overseas shares and dividend funds passed to the deceased in accordance with the terms of the deceased's late husband's will, and thus formed part of the estate.

118 While the Singapore proceeding was on foot for some 18 months, the main period of activity was between March 2020 and the mediation in September 2020, where the executors effectively capitulated,[30] ultimately with the consent of each of the beneficiaries, including the grandchildren beneficiaries. The parties (who were each represented by Singapore-based solicitors) then spent what appears to have been several months haggling over the terms of the deed, including the form of warranty to be given by the executors. Accordingly, the period in which the litigation was active was relatively short. However, I accept that being parties to a proceeding in a foreign jurisdiction, and negotiating a settlement within the family would cause the executors, and in particular Natalia, stress and anxiety.

119 Further, it can be gleaned from the materials that the process of negotiating and executing the deed was quite protracted and fraught. Nearly a year elapsed between the mediation and the final execution of the deed. It is tolerably clear from Tanya's fifth affidavit that the delay was caused, at least in part, by her refusal to execute the deed until August 2021, although the evidence suggests that other beneficiaries, including Anna and Daniel, were also hesitant about executing the deed.

120 As for the Camberwell property, the Camberwell property was a unique property. During the course of the administration of the estate, the executors had to respond to the show cause notice, and had to clean up and prepare the Camberwell property, which was in a very dilapidated condition, for sale during the period in which COVID-19 restrictions were in place. I accept that this aspect of the administration of the estate would have been productive of stress and anxiety.

121 The objectors contended that the executors unreasonably delayed the sale of the Camberwell property (thus incurring expenses associated with holding the Camberwell property), and unreasonably incurred the costs of repairs to the Camberwell property, in circumstances where the Camberwell property could have been sold subject to the show cause notice.

122 As discussed later in these reasons, I agree that there was an unexplained delay on the part of the executors in preparing the Camberwell property for sale, and I agree that delay should be taken into account when determining the amount of commission to be awarded. However, I do not consider it was unreasonable for the executors to comply with the requirements of the show cause notice once it was issued. After all, the issue of the show cause notice exposed the executors, as the registered proprietors of the Camberwell property, to potential criminal penalties. And, while there may have been no legal impediment to the executors selling the Camberwell property after receiving the show cause notice, common sense dictates that a property burdened by such a notice was likely to be substantially less attractive to prospective purchasers. Accordingly, it was not unreasonable for the executors to take steps and expend estate funds on complying with the show cause notice.

123 Finally, part of the stress and anxiety was said to have been caused by Tanya and Daria's queries about the accounts of the estate, which were said to have been accusatory and excessive. However, while the evidence before me may be incomplete, and the correspondence in evidence is indicative of Tanya and Daria's hostile attitude towards Natalia, it seems that the volume and temperature of the correspondence escalated quite substantially after the executors made the commission request. That is, the executors (who were by early 2023 represented by solicitors) were largely exposed to stress and anxiety by reason of their status as claimants for commission, not necessarily by reason of their role as executors. By that time, the administration of the estate was largely complete, and therefore the objectors' queries did not of themselves unduly impede the administration of the estate.

124 By way of illustration, in Natalia's first affidavit, Natalia refers to a 'strange email' from Tanya including a transcript of a conversation between Tanya and Daria where Daria accused Natalia and Anna as being a 'pack of thieves'. However, this email was sent four days after Natalia notified the beneficiaries that the executors would be seeking payment of commission. Further, the 'barrage of emails' Natalia received from Tanya and her Singaporean solicitor post-dated the commission request, as did the 'very unpleasant' emails sent by Tanya referred to in Natalia's first affidavit.

125 The evidence also shows that between late 2019 and mid 2020 Daria's solicitors made repeated requests for administration accounts and an interim distribution from the estate. In this correspondence, Daria also sought the executors' consent to the transfer of the Colac property to her as part of her inheritance. This request was rejected. Ultimately, the question how the Colac property was to be dealt with was a matter for the executors. However, it could not be said that the requests for information and accounts made by Daria through her solicitors in this period were unreasonable.

126 Accordingly, the pains and troubles of the executors relied upon by them for the purpose of their claim for commission have been somewhat overstated. Given the size of the estate, that justifies an award commission at the lower end of the scale. However, a countervailing consideration is that Mr Brand, a retired solicitor with only a professional connection with the family, provided his time and expertise gratuitously, in a period which he apparently suffered some health problems. And, while Natalia, as one of the daughter beneficiaries, did stand to gain a substantial financial benefit from the estate, she was not the primary beneficiary of the estate. She, like the other daughter beneficiaries, received approximately 15 percent of the estate, and any payment of commission will amount to a relatively modest increment over and above what was received by the other daughter beneficiaries, who, unlike her, did not bear the burden and stress of administering the estate.

127 The objectors say that the following conduct of the executors amounts to disentitling conduct:

(a) the manner in which the commission request was made;

(b) delays in the administration of the estate;

(c) the lack of transparency in the administration of the estate, including the Singapore bank account issue;

(d) discrepancies in the estate's accounts, and complaints regarding the missing jewellery and the allocation of jewellery;

(e) questionable payments being made from the estate;

(f) complaints regarding preferential treatment towards certain beneficiaries, in particular Anna; and

(g) misrepresentations made to the beneficiaries regarding the value of the overseas shares.

128 During the course of the application, the objectors made a number of complaints about the conduct of the executors. Dealing with each and every complaint goes well beyond what this Court is required to do in an application of the current kind. What I have endeavoured to do is to identify and evaluate the objectors' complaints of greatest significance to the administration of the estate.

129 Conversely, a number of the objectors' complaints were expressed at a very broad and generalised level, which in that form are difficult to address. The objectors' evidence and submissions are replete with allegations to the effect that the executors made misrepresentations, breached their fiduciary duties, or lacked transparency, with such allegations said to be supported by numerous emails and other documents. Again, I have endeavoured to address what I understand to be the most significant issues raised by the objectors.

130 The objectors contended that the commission request was, as stated in the submissions filed by Sarah, 'grossly excessive, lacking transparency, and coercive'. In particular, the objectors submitted that the reference to the executors making a claim for commission of 3 percent if the beneficiaries failed to consent to the commission request was improper, the short time provided for response was oppressive, and Mr Brand's failure to separately advise the beneficiaries to obtain their own legal advice was in breach of his fiduciary duties to the beneficiaries.

131 These complaints can be dealt with quite promptly. First, the commission request complied with the requirements of s 65D of the Act. The commission request provided detailed information regarding the financial affairs of the estate, how the payment of commission would account for the amounts paid to Mr Brand's former firm, and recommended that the beneficiaries discuss the commission request with their legal advisors.

132 Further, the commission request provided the beneficiaries with approximately three weeks from the date of the commission request to consider the commission request. No doubt if further time was required, an extension of time would have been granted, given that this application was issued nearly a year later.

133 Further, the reference to a potential claim for 3 percent was not improper. The commission request explained the basis for seeking their consent to a lower amount being claimed.

134 Finally, it was not incumbent upon Mr Brand to personally advise the beneficiaries to seek their own legal advice. The commission request made it clear that the beneficiaries should seek their own legal advice. That none of the objectors have elected to do so is not something that can be sheeted home to the executors or their legal representatives.

135 I agree with the objectors that there were unexplained and on their face unreasonable delays in finalising the estate. In particular:

(a) the deceased's superannuation benefits were not distributed to the daughter beneficiaries until more than a year after the grant of probate;

(b) the Colac property was not sold until September 2020, more than a year after the grant of probate;

(c) the Camberwell property was not sold until June 2022, more than three years after the grant of probate;

(d) Natalia and Anna did not make the Singapore trip until more than six months after the grant of probate, in circumstances where a substantial proportion of the assets of the estate were located in Singapore; and

(e) more than a year elapsed between the mediation of the Singapore proceeding and the final execution of the deed.

136 No explanation whatsoever has been provided for the executors' delay in recovering and distributing the deceased's superannuation benefits. The administration account shows that these funds were deposited into the estate's bank account in January 2020, 18 months after the death of the deceased, and were distributed to the daughter beneficiaries some months later.

137 Further, no explanation has been provided as to why it took the executors more than a year after the grant of probate to put the Colac property (which was simply farmland) on the market.

138 As for the Camberwell property, some explanation has been provided as to the length of time required to prepare the Camberwell property for sale, and I accept that explanation. However, the evidence does not make it clear why it took the executors so long to commence preparing the Camberwell property for sale.

139 The administration account shows an invoice was rendered on 31 May 2019 for research into heritage issues.[31] The show cause notice was issued in September 2020. There is limited evidence regarding what took place between early 2019 and September 2020 when the show cause notice was issued, and why the executors did not take steps to prepare the Camberwell property for sale and put the Camberwell property on the market during that period.

140 Further, while I have explained that I consider it was reasonable for the executors to take steps to comply with the show cause notice, it seems from my review of the administration account that no real work was done at the Camberwell property until late 2021/early 2022. While that may be in part due to COVID-19 restrictions, those restrictions were not very severe in the first part of 2021.

141 Accordingly, while there is a partial explanation for the delay in putting the Camberwell property on the market, a three year delay seems unreasonable.

142 As for the delays in realising the overseas shares, while it seems odd that the sale of the overseas shares was precluded by the Singapore proceeding, as noted earlier in these reasons, it is not possible for me to determine, on the evidence available, whether that was in fact the case. However, if that was the case, I accept that the Singapore proceeding would have precluded the early realisation of the overseas shares and the repatriation of the proceeds of sale and the dividend funds to Australia. Further, as observed earlier in these reasons, it is not entirely clear why nearly a year elapsed between the mediation in the Singapore proceeding and the execution of the deed, but I do not have sufficient evidence before me to determine where the responsibility for the delay should lie.

143 Accordingly, it is fair to say that the administration of the estate proceeded at a rather leisurely pace. However, I cannot be satisfied on the evidence available that the estate suffered any material loss by reason of any unreasonable delay. The overseas shares were generating income while they were held by the estate. As for the Camberwell property and the Colac property, it is not possible to evaluate whether any additional rates and land tax payable on those properties was offset by any increase in the value of those properties during the period of delay. While both properties were sold for sums slightly less than the values attributed to them in the inventory, it is not clear from the evidence how the values in the inventory came to be calculated. The sworn valuation for the Colac property fell well short of the value ascribed to the Colac property in the inventory, and the Colac property was ultimately sold for a price slightly higher than the sworn valuation.

144 One appropriate response to the unexplained delays in the administration of the estate is to limit any commission payable to the executors to commission on the corpus of the estate. To the extent that the estate received income, this income was not generated as a result of the efforts of the executors. I have also taken the delays in the administration of the estate into account when evaluating what would be an appropriate percentage to award as commission.

145 In their correspondence, affidavits and submissions, the objectors repeatedly referred to the executors' alleged lack of transparency regarding the affairs of the estate. However, an interim administration account was filed with the Court in April 2020, albeit in response to demands made by Daria's former solicitors and the Court. A substantial bundle of share statements and other information regarding the overseas shares and dividend funds was provided to each of the beneficiaries with the deed, although it is not clear from the evidence when the draft deed was first provided to the beneficiaries.

146 There was also in evidence a substantial bundle of correspondence between Tanya's Singaporean lawyers and Natalia and her solicitors during the course of the Singapore proceeding and again in 2023 regarding documents concerning the overseas shares and the dividend funds. Natalia did produce a substantial amount of documents to Tanya's solicitors in 2023, but it seems there was some missing broker statements and correspondence. This dispute continued into 2024, and ultimately triggered the discovery summons, which was resolved by the discovery order.

147 However, to the extent that there were deficiencies in the information provided by the executors with respect to the overseas shares, dividend funds, and Singapore bank accounts, Natalia has now gone on oath as to what documents she has as a consequence of the discovery order.

148 Of course, a glaring omission from the information provided by the executors to the beneficiaries was the information disclosed in Natalia's fifth affidavit regarding the Singapore bank account issue. In his final written submissions, counsel for the executors conceded that it was undesirable that the dividend funds were held in Natalia's personal bank account, but that Natalia had accounted to the estate for those funds, and had only made those arrangements as it had seemed to be the most practical response to the difficulties she was facing in Singapore in November 2019. However, what remains unexplained is why the dividend funds were not disclosed in the interim administration account filed with the Court in April 2020, or why the Singapore bank account issue was not disclosed to the beneficiaries in the course of the Singapore proceeding.

149 Following the commission request, Daria and Tanya renewed their request to inspect all of the books and records of the estate ('estate records'). Natalia had previously resisted providing electronic copies of the estate records on the grounds that they were voluminous, but said that they could be inspected at her home office. In May 2023, the executors' solicitors informed Daria that the estate records could be inspected at the offices of Wood Fussell on a particular date when Daria would be in Melbourne. However, there was a breakdown in those arrangements, and the inspection did not proceed.

150 In an email to the executors' solicitors on 31 May 2023, Daria requested that the estate records be taken to Officeworks for scanning and emailed to her. In my view, given that Daria lives in Queensland, this was an entirely reasonable request. Complying with that request would have probably consumed far less time and money than this issue has consumed in the application.

151 Finally, the objectors made complaints about the apparent lack of involvement of Mr Brand in the administration of the estate, and their inability to contact Mr Brand directly, without going through Natalia's personal email address. I myself have been a little puzzled by Mr Brand's somewhat hands-off approach to the administration of the estate given the conflict between the daughter beneficiaries. However, I have no reason to doubt Mr Brand's evidence that he regularly discussed estate matters with Natalia, and provided his advice, opinion, and approval as required. However, in hindsight, the more direct involvement from an independent professional person in dealing with the beneficiaries may have reduced the temperature and benefited the estate. However, Mr Brand's lack of visibility in the administration of the estate is not really a transparency issue.

152 Accordingly, while ultimately I do not consider that the executors have sought to actively discourage scrutiny of their conduct or the ability of the beneficiaries to review the affairs of the estate, some of the objectors' specific grievances are legitimate, if perhaps overstated, and will be taken into account when making an award of commission.

153 As for the alleged discrepancies in the estate's accounts, the objectors' allegations are somewhat vague and unparticularised. The beneficiaries have had the administration accounts since early 2024, the ledgers and profit and loss statements of the estate since early 2023, and have had the opportunity to inspect the records of the estate, albeit on terms which I agree were not reasonable.

154 The objectors raised three particular issues about alleged discrepancies in the accounts of the estate:

(a) the differences between the value of various estate assets in the inventory and the amounts actually realised by the executors;

(b) the difference between the assets and the income of the estate and the amounts distributed to the beneficiaries; and

(c) questions about whether the overseas shares and the dividend funds have been fully accounted for. In particular, the amount of the dividend funds is lower than might be expected given the value of the shares and the performance of the share market.

155 In relation to (a) above, in the absence of any probative evidence that any asset of the estate was sold at an undervalue, no issue arises by reason of a difference between the value of the estate assets recorded in the inventory and the value of the assets actually realised. The values in the inventory are of necessity estimates only, and the value of land and shares fluctuates over time, noting that the overseas shares and the Camberwell property were not sold until nearly four years after the date of the inventory. The Colac property was sold for an amount in excess of the value recorded in a sworn valuation.

156 The Camberwell property was sold for approximately $2 million, which was approximately $100,000 less than the amount recorded in the inventory. The objectors' submissions suggest that it was sold at an undervalue (to Anna's husband) because it was poorly presented and potential buyers did not have full access to the property, conferring an unfair advantage upon Anna's husband.

157 The first answer to this allegation is that the Camberwell property was sold at a public auction. As for the issue of the access to the property by potential buyers, Natalia has explained that the executors were unable to obtain public liability insurance for the Camberwell property, such that it was reasonable for the executors to limit access to the property. The assertion that the Camberwell property was poorly presented is just that. In any event, one would expect that the potential market for the Camberwell property would be quite shallow, given its unique qualities, and that potential purchasers interested in restoring a heritage property of that kind would be able to overlook furniture and clutter.

158 As for the overseas shares, the sale of the overseas shares was managed by the brokers. Notwithstanding the submissions of the objectors, there is nothing in the evidence to suggest that any of the overseas shares were misappropriated, or that the sales were not on an arms-length basis. The objectors' repeated and shifting allegations about improper dealings with the overseas shares and the dividend funds appear to be largely speculative.

159 As for the objectors' contention that the income generated from the overseas shares fell short of what might be expected by reason of the size of the share portfolio and market conditions, in the absence of reasonably precise evidence to support that contention, and given that the brokers had custody of the overseas shares, it is impossible to draw any such conclusion in this application.

160 Daria's submissions referred to a discrepancy of approximately $1.1 million between the receipts of the estate and the distributions to beneficiaries. However, the document compiled by the solicitors for the executors and provided at the hearing on 8 October 2024 shows that the discrepancies identified by the objectors can be almost fully explained by the payments made from the estate for the purposes of the estate, as revealed by the administration account.

161 Accordingly, the objectors have not identified any material discrepancies in the accounts of the estate which justify a denial or discounting of commission.

162 Finally, Daria (and, to a lesser extent Tanya) complained about the executors' handling of the deceased's jewellery. Apparently, not all of the deceased's jewellery could be found after her death. Daria urged Natalia to make a police report in order to facilitate an insurance claim. There is some conflict in the evidence about whether a police report was actually made, but if a report was made, nothing came of it. Daria also complained that neither she nor Sarah received all of the jewellery allocated to them, and that of the items given to her, a bangle was broken, and a fur coat was torn.

163 It is not possible to determine the rights and wrongs of these issues in the context of this application, and I shall not attempt to do so. Even if the allegations made by Daria and Tanya are correct, they have no bearing on the calculation of commission.

164 The objectors have identified a number of 'questionable' payments in the administration accounts, including payments made in connection with the VCAT proceedings, the passing over proceeding, the Singapore proceeding and possibly this application, as well as payments to members of Anna's family for bookkeeping, research, and gardening services, and payments and gifts to people who had provided company and care for the deceased.

165 In my review of the document handed up by Daria and Tanya at the hearing listing what they consider to be questionable expenses,[32] I identified the following categories of expenses:

(a) legal fees and other expenses associated with Anna's defence of the VCAT proceedings;

(b) legal fees incurred in 2023, possibly in connection with this application;

(c) expenses associated with the Canterbury property;

(d) legal fees associated with the passing over application;

(e) legal fees payable to the estate's Singaporean lawyers;

(f) other expenses associated with the Singapore trip and the overseas shares;

(g) reimbursement to Natalia for unspecified reasons;

(h) expenses associated with the construction of a headstone for the deceased, and the wake, burial, the lunch and memorial lunch after the death of the deceased;

(i) gifts and payments made to people who had cared for the deceased, and payments made to the deceased's sister; and

(j) payments made for services rendered by family members.

166 As for the payments related to Anna's defence of the VCAT proceedings, I agree that these payments were quite possibly not the responsibility of the estate, although they may be. I have not heard any argument about the entitlement of the holder of a power of attorney to an indemnity from the donor of the power for the costs associated with the donee defending their conduct as power of attorney if successful in that defence, but that issue seems to me to be something that a responsible executor should seek and follow advice upon.[33]

167 As for any legal fees charged in connection with this application, in an earlier decision[34] I have observed that it may be inappropriate for an executor to utilise the assets of the estate to bring a claim for commission. Ultimately, the liability for the costs of such an application is a matter for the Court. It is not clear from the evidence whether these costs are associated with this application, but they may well be. However, the question of costs will be determined at the conclusion of the application.

168 As for the expenses connected with the Canterbury property, they should have been borne by the owner of the Canterbury property, but these expenses are trivial in the context of an estate of this size.

169 As for the legal fees for the passing over proceeding and the Singapore proceeding, these expenses were clearly expenses of the estate. In both proceedings, the executors were defending the will. Similarly, I have no difficulty with any of the expenses associated with the Singapore trip and other expenses associated with the realisation of the overseas shares being reimbursed from the assets of the estate.

170 Without further evidence, I am not in a position to assess one way or another whether the reimbursements to Natalia were for expenses properly incurred by her in her capacity as executor. The fact that the objectors have challenged expenses associated with the celebration and memorialisation of the deceased is bemusing, to say the least.

171 Finally, as for the payments made to third parties, technically speaking, if a family member wishes to make gratuitous payments in recompense or gratitude for the care shown by others for their late parent, then they should probably do so from their own funds, not estate funds, at least without the consent of the other beneficiaries. These payments seem to be of a similar character to the kind which were the subject of the VCAT proceedings, and it seems that the estate has been reimbursed by Natalia for some of these payments.

172 As for the other questionable payments, it was probably unwise for the executors to engage family members to provide services to the estate, and, in the circumstances, such conduct was bound to invite trouble. However, if the executors honestly and reasonably believe that the services rendered by the recipients of the questionable payments were provided to the estate and were worth what was charged, it could not be said that the making of the questionable payments was disentitling conduct.

173 However, this application is not the proper vehicle for investigating in minute detail the appropriateness of particular payments made by the executors from the estate.

174 While the quantum of the questionable payments is not particularly large, particularly in the context of an estate of this size, I have taken this issue into account when determining the appropriate rate of commission to award.

175 The issue of whether one or more of the beneficiaries received preferential treatment from the executors is to some extent related to the questionable payments issue, as some of the questionable payments were made to Anna's family members. The objectors also accused the executors, and Mr Brand in particular, of favouritism towards Anna because Mr Brand apparently assisted Anna with her defence of the VCAT proceedings, and delegated his executorial duties to Anna for the purpose of the Singapore trip.

176 I will not repeat what I have already said about the question of whether assisting Anna in the defence of the VCAT proceeding was within the scope of the executors' duties. Those observations do not preclude the executors from assisting Anna in their personal capacities, based upon their knowledge of her role in caring for the deceased and of the deceased's affairs. Further, Mr Brand has provided an adequate explanation as to why he delegated his executorial duties to Anna for the purpose of the Singapore trip. And, it was entirely reasonable for the executors to consult with Anna, as the holder of the deceased's power of attorney, for the purposes of locating and calling in the assets of the estate.

177 However, the real difficulty with this aspect of the objectors' submissions is that while it may be that the executors were more favourably disposed to Anna, and enjoyed friendlier relations with Anna than they did with Tanya and Daria, the objectors have not established how Anna has in fact benefited from any alleged preferential treatment. To explain further, the two most significant decisions made by the executors in the administration of the estate were to compromise the Singapore proceeding in accordance with the terms of the deed, and to comply with the show cause notice prior to selling the Camberwell property.

178 Turning first to the settlement of the Singapore proceeding, the terms of settlement involved, in effect, a capitulation to Tanya's claims in the Singapore proceeding. Anna, like each of the other daughter beneficiaries, benefited from the terms of the deed personally. However, given that she has three children, and Daria has two children, the families of both Anna and Daria were disadvantaged by the terms of the deed (Anna's family more so), and Natalia's family and Tanya were advantaged by the terms of the deed, given that the grandchildren beneficiaries surrendered their claims to the overseas shares and the dividend funds. How the settlement of the Singapore proceeding amounts to preferential treatment towards Anna completely escapes me.

179 As for the work done on the Camberwell property and the terms upon which the Camberwell property was sold, I understand from the objectors' evidence and submissions that because Anna's husband purchased the Camberwell property, the conduct of the executors can be 'reverse engineered' to show that this conduct was motivated to assist Anna's husband to purchase the Camberwell property on more favourable terms.

180 However, I have already found that it was reasonable for the executors to comply with the show cause notice. Based upon my review of the administration account, the executors seem to have done close to the minimum required to comply with the show cause notice. That is, they carried out repairs to the Camberwell property, not a renovation. Further, the restrictions upon the ability of potential purchasers to access the house on the Camberwell property was explained. That leaves the objectors' complaint that the purchaser was granted a four month settlement period, as compared with the usual 60 days. However, in my experience, settlement periods of 90 days are not uncommon, which makes this complaint trivial, and the allegation of preferential treatment without merit.

181 While the objectors' submissions refer to the executors having misrepresented matters to the beneficiaries and having breached their fiduciary duties to the beneficiaries in general terms, the objectors' specific complaint centres on a representation made by Natalia to the effect that the overseas shares were worth approximately $1.5 million, rather than approximately $4.5 million.

182 In his affidavit, Daniel referred to an exchange he had with Natalia in October 2020. On 15 October 2020, Daniel wrote as follows:

Hi Aunty Sue,

I am writing to you because I have been included in the Singapore writ. I have spoken to a lawyer and he has asked to know what is your position? At this stage the current estimate of cots to defend this writ will be in exceed S$120,000, which I can not afford.

What is the value of the share in the estate? Because at this rate there will be nothing left after the lawyers fees.

As the co-executor, is there anyway you can mediate this current situation?

Looking forward to your reply.

Daniel

183 On 18 October 2020, Natalia responded as follows:

Daniel,

The executors' only avenue of a way to mediate this situation was to get the beneficiaries to agree that the shares should be divided by 4 and not 10 so that a family agreement could be drawn up. You did not agree to this and so you will have to seek your own legal advice.

The value of the shares is currently about 1.5 Million. It is disappointing but typical of your mother that she is not supporting your Aunt Uja in all of this.

The Executors

184 I understand from Natalia's response that her opinion was that the Singapore proceeding could only be resolved by Tanya receiving a quarter of the value of the overseas shares and the dividend funds, and that if the matter was to proceed, the executors would not be defending the will.

185 It seems from the evidence that as at March 2021, Anna considered that the executors should defend the will, but later changed her mind. Daniel exhibited to his affidavit a text message from Anna to Tanya on 20 August 2021, where Anna said as follows:

Tanuja

The more financial information you put in the deed, the higher the risk the grandchildren not signing off the shares being divided by four. They will see how much money they are losing out on their inheritance.

You should be focusing on getting the documents being sign off. You are fully aware that there is a money trail on all the dividends and no one can run off with the money.

Get on with it you idiot.

186 Natalia's representation that the overseas shares were valued at approximately $1.5 million was said by the objectors to have been made in order to procure the consent of the grandchildren beneficiaries, and in particular, Daniel, to the terms of the deed. While there was no express statement by Daniel in his affidavit to the effect that he would have adopted a different position had he understood the true position, common sense suggests that one or more of the grandchildren beneficiaries might have been more inclined to litigate over $450,000 than over $150,000.

187 The figure of $1.5 million was referred to in a letter from the executors' Singaporean solicitors to Tanya's Singaporean solicitors sent on 20 August 2020, and was far less than the value of the overseas shares in the inventory of $4.9 million. It is also substantially less than the value ascribed to the overseas shares and dividend funds in a letter sent by Tanya's solicitors to the executors' solicitors in August 2021.

188 The executors submitted that there was no misrepresentation, as the deed annexed the share statements and other information concerning the overseas shares. The executors also pointed to a number of warranties and representations made in the deed, which would arguably preclude any of the grandchildren beneficiaries from bringing an action to set aside the deed on the grounds of any misrepresentation.

189 This application is not the vehicle to determine whether Natalia's statement about the value of the overseas shares amounted to an actionable misrepresentation. Given the reference by her solicitors to the overseas shares being valued at $1.5 million in August 2020, Natalia may have had an honest, but mistaken belief as to the value of the overseas shares. There is simply insufficient evidence to reach any firm conclusion, and, in any event, this conduct is more relevant to any action to set aside the deed (which presumably would need to be brought in Singapore) than to the issues in this application. However, while I accept that it would have been possible for a beneficiary in the position of the grandchildren beneficiaries to calculate the value of the overseas shares based upon the information annexed to the deed and publicly available information, it would not have been a straightforward exercise to do so.

190 In Tanya's first affidavit, she exhibited a table sent by her Singaporean solicitors to the executors' solicitors on 6 August 2021 which was prepared by Tanya herself, and valued the overseas shares and dividend funds at between $4.5 and $5.3 million. Tanya deposed that compiling this table took three to four hours of her time. So, while it may have been time consuming for the grandchildren beneficiaries to make an assessment of what they were surrendering by executing the deed, it was not impossible.

191 Further, I cannot be satisfied that the making of the representation caused any beneficiary any loss, because there is no evidence to the effect that any beneficiary would have acted differently had they been informed of the true value of the shares prior to executing the deed. None of the objectors seem to complain about the terms of the deed, or have taken any step to set aside the deed. As for the statement made by Anna to Tanya in her message in August 2021, the statements and conduct of Anna cannot be sheeted home to the executors.

192 Having regard to all of the evidence and submissions before me, I have reached the following conclusions:

(a) the executors have spent a substantial amount of time and effort on the administration of a moderately complex estate, and prima facie deserve some compensation for their troubles;

(b) the 'pains' caused to the executors by the administration of the estate have been somewhat overstated, and the responsibility for the combative and intemperate communications regarding the administration of the estate cannot be confined to Daria and Tanya alone;

(c) some of the conduct said by the objectors to amount to disentitling conduct is either not established, is irrelevant to the administration of the estate, or simply concern decisions about which reasonable minds can differ, and as such does not disqualify the executors from receiving commission;

(d) further, some of the grievances seem to stem largely from other disputes within the family, such as the concerns of Tanya in particular regarding properties held in the name of Natalia and Anna, and the management of the family trust;

(e) however, some of the objectors' grievances are legitimate, as explained earlier in these reasons. In particular, some of the delays in the realisation and distribution of the estate assets remain unexplained. Further, there are some question marks with respect to the Singapore bank account issue and with respect to some of the questionable payments made from the estate;

(f) the lack of active involvement of Mr Brand in the administration of the estate, given his qualifications and experience and the conflict within the family, is a little puzzling;

(g) the conduct of the executors in requiring Tanya and Daria to attend in person to inspect the records of the estate was in the circumstances unreasonable;

(h) however, the conduct of the executors did not amount to fraud or breach of fiduciary duty, and any deficiencies in the administration of the estate did not rise to the level of maladministration. Further, the objectors have not established that the conduct of the executors has caused the estate any substantial loss;

(i) further, it is to be kept in mind that the executors were acting gratuitously, with Mr Brand having received no remuneration since 2019, and Natalia receiving only a modest share of what is a large estate; and

(j) there was nothing improper about the way in which the commission request was framed and pressed.

193 For completeness, in their submissions, the objectors referred to the conduct and circumstances in the current case as being on all fours with the estate which was subject to a claim for commission in Re Buckingham.[35] In that case, the executor's claim for commission was refused because it was found that much of the work was carried out by professionals, significant losses were caused by the executor, significant difficulties were caused by his failure to properly account, and he made claims for time and effort expended upon matters that did not relate to the administration of the Buckingham estate.[36]

194 The complaints made by the objectors in this application mirror some of the findings made by McMillan J in Re Buckingham.[37] However, in the current application, while I have found that the objectors did have some legitimate grievances, overall, I have not found that the executors have misconducted themselves, or have caused substantial losses to the estate. In contrast, the Buckingham estate was a simple estate, the executor was the primary beneficiary of the Buckingham estate, and the accounts of the Buckingham estate were in disarray, necessitating an application to the Court to compel the provision of the proper accounts.

195 In the current case, while there are some minor errors in the administration account, some question marks about some of the transactions recorded in the administration account, and the fact that the dividend funds were not recorded in the interim account, the administration account provides a very clear picture of how the estate has been administered and distributed. Much of the work of the administration of the estate has been carried out by the executors, not paid professionals, in circumstances where Natalia is only one of many beneficiaries. To the extent that there are legitimate criticisms of the conduct of the executors, they have been taken into account in calculating the quantum of commission: they do not warrant a denial of commission.

196 Accordingly, a fair and reasonable commission would be 0.8 percent of the corpus of $15,229,948.85.[38] Given that the income received by the estate was received largely as a consequence of the delays in realising the assets of the estate, rather than the efforts of the executors, it is not appropriate for the executors to receive commission upon the income of the estate.

197 While I accept that it is necessary for the Court to take a broad brush approach to applications for commission, I shall briefly explain how the percentage of 0.8 percent was arrived at. First, I have discounted the claim of 1.5 percent to 1.3 percent to reflect the reduction in the number of hours claimable by Natalia (see paragraph 103 of these reasons). I have then applied a further discount of 0.5 percent to take into account what I have found to be the legitimate grievances of the objectors, in particular, the delays in the administration of the estate. However, given the substantial amount of work done since Mr Brand's retirement, I do not propose to deduct the sums already paid to Wood Fussell from the amount of commission to be awarded.

198 For completeness, while in their affidavits and submissions the objectors have sought orders removing the executors as executors of the estate, no formal application to that effect has been made, and for that reason, I have not considered that issue.

199 I shall seek further submissions regarding the appropriate form of order, including any amended calculation of the corpus of the estate, and the question of costs.

[1] The parties' given names are used in these reasons for ease of reading. No disrespect is intended.

[2] An amended inventory was filed on 20 March 2019 which showed assets of $17,893,799.43.

[3] The Canterbury property was not an asset of the estate, but seems to have been owned by the family trust. It was sold after the death of the deceased.

[4] It is apparent from the materials, in particular Tanya's affidavits and submissions, that there is a simmering dispute within the family as to the beneficial ownership of certain properties owned by family members and the family trust, including a holiday home and a vacant block of land in Anglesea, a commercial property in New South Wales, and the property in Hawthorn where Natalia lives. Tanya seems to contend that Mr Brand breached his executorial duties by failing to investigate the question of whether some or all of these properties were beneficially owned by the deceased, and thus should have formed part of the estate. However, this allegation was largely unparticularised, and the composition of the estate and the assets and management of the family trust are outside the scope of the application.

[5] Tanya says that the Singapore proceeding should not have prevented the sale of the overseas shares or the repatriation of the dividend funds. I do not have sufficient information before me to determine whether or not this proposition is correct.

[6] The Camberwell property was on a large block of land on Riversdale Road, upon which was a house constructed in the 1950s by the late Robin Boyd, a renowned architect. The Camberwell property was the subject of litigation in this Court initiated by the deceased in an unsuccessful attempt to have the property removed from the Heritage Register, which severely restricted the ability of the deceased (and any subsequent purchaser) to renovate the house and/or redevelop the property. At the time of the deceased's passing, the house on the Camberwell property had been unoccupied for many years, was in a state of disrepair, and was filled with furniture and other clutter, and the garden was unkempt and overgrown.

[7] Prior to the issue of this application, Daria contended that the deceased's superannuation benefits and the overseas shares did not form part of the estate, but this submission was not pressed at the hearing of the application.

[8] Equivalent to approximately 85 business days.

[9] Equivalent to approximately eight business days.

[10] I understand that Tanya relies upon these notes to support her contention that the properties discussed were beneficially owned by the deceased, and should accordingly have formed part of the estate (see footnote 4).

[12] This document was prepared in response to a submission made by Daria in her written submissions of 6 September 2024 to the effect that there was a sum of $1,115,383.90 unaccounted for in the estate.

[13] Re Allan McLean (1911) 31 NZLR 139, 144; Re estate of Stone (deceased); Patterson v Halliday [2003] VSC 298; Re Buckingham [2016] VSC 757; (2016) 51 VR 453.

[14] Re estate of Stone (deceased); Patterson v Halliday [2003] VSC 298 [27].

[15] Richards v Richards [2015] VSC 335 [30].

[17] [2003] VSC 433; (2003) 7 VR 219.

[19] Szmulewicz v Recht (2010) 5 ASTLR 109.

[20] [2016] VSC 757; (2016) 51 VR 453.

[24] I understand this complaint to contend that Mr Brand had failed to investigate whether certain properties of which the trustee, Anna or Natalia were the registered proprietors were beneficially owned by the deceased, and as such should have been part of the estate (see footnote 4). However, I note that Mr Brand was the deceased's former solicitor, and some of the documents put in evidence by Tanya suggested that Mr Brand was well aware of the deceased's property holdings and the properties held by the family trust.

[25] In Natalia's first affidavit, Natalia deposed that because of the time and expertise required to value the overseas shares, the executors engaged professionals to undertake that task. However, no reports or other documents evidencing that engagement, or the work product of that engagement were discovered by the executors in response to the discovery order.

[26] See Hawkins v Barkley Brown [2010] NSWSC 48 [65]; Re Buckingham [2016] VSC 757; (2016) 51 VR 453 [85].

[27] This summary is largely based upon the administration account, supplemented by the evidence of both the executors and the objectors.

[28] While probate was not granted until March 2019 by reason of the passing over application, the inventory was prepared by September 2018.

[29] Email dated 3 January 2020. There is also other correspondence in the objectors' evidence from Natalia expressed in quite belligerent tones.

[30] There is insufficient evidence for me to determine whether that capitulation was justified.

[32] Along with expenses incurred by reason of the delay in selling the Camberwell property, totalling $131,264.80.

[33] While I have no direct evidence of this, the executors may already have done so.

[34] Re Estate of Zsuzanna Gray [2010] VSC 173 [34].

[35] [2016] VSC 757; (2016) 51 VR 453.

[38] At the hearing on 8 October 2024, counsel for the executors drew my attention to some errors in the administration account. In particular, some receipts recorded as income in the account should be classified as receipts to the corpus of the estate. Given my conclusion that commission should not be payable upon the income of the estate, the administration account will need to be amended prior to final calculations and orders being made, resulting in an award of commission a little greater than the amount referred to in this paragraph.