Proctor : April 2019
38 PROCTOR | April 2019 To many of us, estate administration disputes can seem Pythonesque – gravely serious, yet often comedic in their depth and nature. The position of personal representative (PR)1,2 is, at times, burdensome; for beneficiaries, at times bewildering. The mix frequently results in disputes over the manner in which the estate administration is conducted, with both often left floundering for a productive resolution. Introduced in 2011, Chapter 15, Part 10 of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR)3 is an overlooked yet economic way to resolve these disputes. It starts as a quasi- judicial process and, if necessary, can proceed through to a full judicial determination. This article provides a practical step-by-step guide to navigating Part 10. Legislation The current version of Part 104 was introduced through 2011 amending legislation under the Uniform Civil Procedure Amendment Rule (No.1) 2011.5 The explanatory memorandum to this amendment summarised its objectives as follows: • clarifying the procedure for applying for the assessment and passing of an estate accounts • prescribing the minimum standards for the procedure of the assessment • clarifying the powers and functions of an estate account assessor • clarifying and updating the procedure for applying for and awarding of a trustee’s or executor’s commission.6 Part 10 proscribes a formal process whereby the manner in which an estate trust is administered can be considered in a structured way through the oversight of an independent third party, an estate account assessor. The estate account assessor is both accredited and appointed by the court, and an accredited specialist in succession law. The estate account assessor has powers akin to a registrar, including the power to determine the process. 7 Sadly, estate administration disputes often involve prolix and incendiary correspondence disputing the adequacy Passing and filing estate accounts or otherwise of the estate accounting and administration, increasing the costs and acrimony between the parties without any real or satisfactory resolution. An application to file and pass estate accounts therefore has the very real potential to save time and money by bypassing these exchanges, providing the parties with an independent assessment of the issues in contention which is proscriptive, and therefore economic and efficient. Process – by person representative As a shield, a PR concerned about potential or actual criticism of their conduct in administering the estate can simply apply to the court, ex parte,8 seeking an order for the appointment of an estate account assessor to assess and pass the estate accounts. The process provides the PR with the imprimatur of the court for its conduct in the estate administration and, if necessary, guidance on any matters to be addressed. Part 10 sets out the minimum requirements for what must be included in a set of estate accounts and the way in which they are presented – see rule 648. This proscription alone can remove a great deal of unnecessary disputation on what ought to be included in estate account reporting. As with all things related to the law, language is key to understanding the process. Practitioners are directed to rule 644, which contains the definitions for Part 10. These clarify the expectations on what must be included in the material sought and presented. Once the PR has filed an application for the filing and passing of estate accounts, they must follow the process as per steps five and six below. Process – by beneficiary A concerned beneficiary may utilise Part 10 as a sword by holding the trustee to account in a formal and relatively economic way. Step 1: Eligibility Is the beneficiary eligible to seek an assessment of the estate accounts?9 See the definitions in rule 644. Only a beneficiary entitled to an accounting may apply to the court under Part 10. Typically, the residuary beneficiary/ies are the only entitled beneficiaries. The case authority for this proposition is Re Schilling  1 Qd R 696. In that decision, the beneficiary’s right to seek an account was generally limited to those in whom a beneficial interest, as opposed to a mere right to due administration, had vested on completion of the administration. It was further held that the beneficiary should ordinarily exercise the right to inspect the accounts before bringing an action.10 Step 2: Notice to the trustee of the estate – rule 646(1) The beneficiary must write to the PR and request an estate account to be prepared and served within 30 days.11 Step 3: No response If no estate account is provided after 30 days, the beneficiary is entitled to make an application to the court under rule 645 for the filing, assessing and passing of an estate account – see rule 646(7). Step 4: Response provided – Objection If the response is not satisfactory, then the beneficiary may serve a notice of objection on the PR – rule 646 (2). The notice of objection must be in the approved form and must set out in a particular manner the objections – rules 646(3)-(6). The approved form is form 127 of the UCPR. The notice must give the PR 21 days to address the objections – rules 646(7)(b)-(c). Step 5: Estate account assessor appointment If no response is given or is unsatisfactory, the beneficiary may then apply to the court for the appointment of an estate account assessor. 12 In preparation for that application, the beneficiary must write to the estate account assessor13 seeking their written consent to act, confirmation of their fees, and to obtain clearance of conflict of interest – rule 645(3). The beneficiary then files an application seeking orders that the PR file an estate account and that the estate accounts be assessed and passed – rule 645(1). The respondent to the application is the PR – rule 645. The application is supported by an affidavit. The affidavit must depose to the reasons for the application – rule 645(2).