Re Lowe [2000] NSWSC 1180

New South Wales Supreme Court

CITATION : Re Lowe [2000] NSWSC 1180 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4560/2000 HEARING DATE(S) : 23/11/2000 JUDGMENT DATE : 23 November 2000

PARTIES : James David Lowe (P) JUDGMENT OF : Young J

COUNSEL : E Holt (P) SOLICITORS : McMillan & Dawson (P) CATCHWORDS : SUCCESSION [263]- Getting in the estate- What are testamentary expenses for which executor may sell assets- Reasonable costs of defending Family Provision Act proceedings are testamentary expenses SUCCESSION [335]- Family Provision Act- Costs- Executor's costs are testamentary expenses. Re Prince [1898] 2 Ch 225 CASES CITED : Re Woodman (1940) 11 ABC 159 Sharp v Lush (1879) 10 Ch D 468 DECISION : See paras 11 and 12.

THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

YOUNG J

THURSDAY 23 NOVEMBER 2000

4560/2000 - RE LOWE

JUDGMENT

1 HIS HONOUR: This is an application for judicial advice by the executor of the estate of George Henry Horn who died on 6 November 1998. Mr Horn left three parcels of real estate in the general Newcastle area, namely his matrimonial home at Valentine, an investment property at Soldiers Point and a property at Sandgate. Each was specifically devised so that his widow, being the deceased's second wife, has what might well be a life estate in each property. 2 A daughter of the deceased by his first wife, Jennifer Anne Spiller, has, in proceedings 3767/99, sought provision under the Family Provision Act 1982. 3 In the statement of facts the executor has indicated that he has incurred costs to date of $26,345. The statement is not particularly explicit, nor does it appear how the sum of about $12,000 in liquid funds detailed in the inventory attached to the probate has been expended. The schedule of costs includes motor car expenses for a motor car specifically bequeathed to the executor of $3,704; moneys advanced by the widow for probate costs etc of $12,281; legal fees which are not designated but which appear to refer to the Family Provision Act proceedings for $10,000; and some $200 for fares and wages. 4 An executor has power to sell assets after administration of the estate. That includes meeting the probate, funeral and testamentary expenses. Testamentary expenses are those which are necessarily incurred by an executor in the proper performance of his or her duty. Woodman on Administration of Assets, 2nd edition (LBC, 1978) at p 10 says these expenses include: