Executor and Trustee Remuneration Disputes in Victoria: Commission, Accounts, and Challenges

An executor commission dispute in Victoria commonly arises where an executor, administrator or trustee seeks payment for their pains and trouble in administering an estate, but beneficiaries question whether the amount is justified. In Victoria, executor commission and trustee remuneration are not automatic entitlements simply because a person has carried out estate or trust administration. They must be authorised by the will or trust deed, agreed by the beneficiaries, or approved by the Supreme Court where required. 

For high-net-worth individuals, family business owners and beneficiaries of substantial estates, the issue is rarely just the dollar amount. A beneficiary objection may reflect deeper concerns about delay, inadequate disclosure, conflict of interest, unexplained transactions, or the quality of estate records produced for the passing of accounts. Conversely, an executor or trustee who has undertaken significant work may need to justify remuneration by reference to the complexity, responsibility, and risk involved. 

Understanding how remuneration is assessed in Victoria, when Supreme Court approval may be required, and how beneficiaries can challenge commission or accounts is essential to resolving these disputes.  

 How Does Victorian Law Assess Executor Commission and Trustee Remuneration? 

In Victoria, the starting point for an executor commission dispute in Victoria is section 65 of the Administration and Probate Act 1958 (Vic). That provision allows the Supreme Court to approve commission, up to five per cent, for an executor, administrator or trustee’s pains and trouble where the amount is just and reasonable. For trustees of settlements, section 77 of the Trustee Act 1958 (Vic) gives the Court, or an Associate Judge, power to allow trustee remuneration from trust funds on a similar basis. 

These provisions do not create an automatic right to payment. An executor or trustee must usually point to one of three sources of authority: an express charging clause in the will or trust deed, informed consent from the affected beneficiaries, or Supreme Court approval. Where the will or deed is silent, or where beneficiaries do not agree, the fiduciary should not simply pay commission from estate or trust assets without proper authority. 

The Court’s assessment is discretionary. It considers the nature and value of the estate or trust, the complexity of the administration, the time and responsibility involved, the skill required, the risks assumed, the quality of the records and whether the executor or trustee has already received professional fees. In Re Estate Gowing; Application for Executor’s Commission [2014] NSWSC 247, the Court explained that commission is not fixed by a tariff alone, but by a practical assessment of the work, responsibility, and results of the administration. Although a New South Wales decision, it is commonly useful when considering the same underlying principles of remuneration for estate administration. 

Victorian authority is particularly important where the executor is also a lawyer or other professional. In Walker v D’Alessandro [2010] VSC 15, the Supreme Court of Victoria emphasised the need for informed beneficiary consent where a solicitor-executor seeks commission and professional fees. The issue is not merely whether work was done, but whether the beneficiaries had sufficient information to understand the proposed payment and its effect on the estate. 

For beneficiaries, a beneficiary objection will usually be strongest where the accounts are incomplete, the estate administration has been delayed, there is duplication between legal fees and commission, or the passing of accounts exposes transactions that require explanation. 

How Do Courts Decide Whether Executor Commission or Trustee Remuneration Is Justified? 

What work was performed by the executor or trustee? 

The Court looks beyond the fact that an executor or trustee held office. The central question is what work was performed, how difficult it was, and whether it justified payment from estate or trust assets. Routine administration may support a modest claim, while complex work involving business assets, contested beneficiaries, tax issues, litigation risk, property sales, or difficult asset realisation may support a more substantial claim. In an executor commission dispute in Victoria, the applicant should be able to identify the work done with sufficient detail, not merely assert that the estate was burdensome. 

How much responsibility, risk, and complexity were involved? 

Under section 65 of the Administration and Probate Act 1958 (Vic), commission must be just and reasonable for the executor’s pains and trouble. Section 77 of the Trustee Act 1958 (Vic) applies a comparable approach to trustee remuneration from trust funds. The Court may consider the value of the estate or trust, but value alone is not decisive. A large estate that is simple to administer may not justify high commission. A smaller estate involving difficult family dynamics, disputed assets or significant fiduciary risk may require closer analysis. The question is proportionality between the work, responsibility, and proposed payment. 

Were the estate accounts clear enough to test the claim? 

A claim for executor commission or trustee payment is difficult to assess without reliable accounts. Beneficiaries are entitled to understand what came into the estate or trust, what was paid out, what remains, and how the proposed remuneration has been calculated. Where there is a beneficiary objection, the quality of disclosure can become decisive. Poor records, unexplained transactions, inconsistent asset values, or delay in producing documents may undermine the claim, even where the executor or trustee has done real work. The passing of accounts process can also expose whether commission overlaps with legal fees, accounting fees, or other professional charges. 

Has the executor or trustee already been paid in another capacity? 

Courts are alert to duplication. A solicitor-executor, accountant-executor or professional trustee may be entitled to charge professional fees where properly authorised, but that does not automatically justify additional commission for the same work. In Walker v D’Alessandro [2010] VSC 15, the Supreme Court of Victoria emphasised the need for informed consent where a solicitor-executor sought commission while also charging professional fees. Beneficiaries must understand the nature of the proposed payment, the basis for it, and its practical effect on the estate. 

Would approval be fair to the beneficiaries as a whole? 

The Court’s discretion is ultimately protective. It balances fair recognition of genuine work against the fiduciary obligation to preserve estate or trust assets for beneficiaries. Supreme Court approval is more likely to be contested where there has been delay, conflict of interest, inadequate disclosure, unnecessary expense or conduct that has made administration more difficult than it needed to be. 

What Disputes Commonly Arise Over Executor Commission and Trustee Remuneration? 

Disputes over executor commission and trustee remuneration often arise late in the administration, when beneficiaries receive accounts and discover that a proposed payment will reduce the amount available for distribution. In substantial estates, the dispute may be sharpened by commercial assets, family trusts, investment portfolios, private companies, rural land, or jointly managed family wealth. The question is not only whether work was done, but whether the payment claimed is justified, properly authorised and supported by transparent records. 

A common issue is duplication. An executor who is also a solicitor, accountant, financial adviser, or professional trustee may have charged professional fees during the administration, then separately claim commission for pains and trouble. That may be permissible in some cases, but beneficiaries will often object where the same work appears to have been charged twice, or where the will does not clearly authorise both professional fees and commission. This is a frequent source of an executor commission dispute in Victoria, particularly where the beneficiaries were not told in advance how the executor intended to be paid. 

Another practical issue is delay. Where an estate has remained unresolved for years, beneficiaries may resist commission on the basis that the executor’s own conduct increased the work required. Delayed property sales, late tax lodgements, incomplete responses to beneficiary questions, or failure to progress probate and distribution can materially affect whether commission is fair. 

Disputes also arise from poor accounts. A beneficiary objection may focus on missing bank statements, unexplained withdrawals, informal reimbursements, inconsistent asset values, or unclear treatment of income and capital. In those circumstances, the passing of accounts is not a procedural formality. It becomes the mechanism by which beneficiaries test whether the executor or trustee has administered the estate properly and whether any remuneration should be reduced or refused. 

For trustees, disputes can be more complex where the trust continues beyond the estate administration. Beneficiaries may challenge ongoing remuneration where trustee decisions affect business control, distributions, tax planning, or the timing of asset sales, particularly where there are beneficiary challenges to trustee conduct. In those matters, Supreme Court approval may provide discipline and finality, but the claim still turns on evidence, proportionality, and fiduciary conduct. 

What Evidence Matters Most in an Executor Commission Dispute in Victoria? 

Before pursuing or defending an executor commission dispute in Victoria, the first issue is evidence. A claim for executor commission or trustee remuneration should be supported by clear records showing the work performed, the period over which it was performed, the complexity of the administration, and the decisions that required judgment rather than routine processing. Time records are useful, but they are not the whole case. Courts also look at responsibility, risk, proportionality and whether the fiduciary’s conduct protected or diminished the estate. 

For beneficiaries, a beneficiary objection should be framed with precision. A general objection that the amount is too high may have limited force unless it is supported by specific issues: delay, duplication with professional fees, inadequate disclosure, unexplained transactions, conflict of interest, or poor administration. Requests for information should focus on estate accounts, invoices, asset values, correspondence, tax records, and the basis on which remuneration has been calculated. 

For executors and trustees, the strategic risk is paying oneself too early or without proper authority. Where the will or trust deed is unclear, informed beneficiary consent or Supreme Court approval may be the safer course. The same discipline applies to executor duties and estate administration risk, particularly where personal liability, distribution decisions and beneficiary communications are already in issue. 

The passing of accounts is often the practical turning point. It can narrow the dispute, expose deficiencies, support a negotiated resolution, or identify whether court intervention is necessary. 

Frequently Asked Question 

How Should Executor Commission and Trustee Remuneration Disputes Be Resolved in Victoria? 

Executor commission and trustee remuneration disputes should be approached with evidence, restraint, and a clear understanding of fiduciary obligations. In Victoria, payment for pains and trouble is not automatic. It must be authorised, agreed, or approved, and it must be proportionate to the work, responsibility, and complexity involved. For beneficiaries, a properly framed beneficiary objection will usually depend on records, disclosure, delay, duplication, and the quality of the passing of accounts. 

If you are an executor, trustee or beneficiary involved in an executor commission dispute in Victoria, Pentana Stanton Lawyers can advise on estate administration disputes, remuneration claims and challenges to accounts. Contact our wills and estates team or book a confidential consultation to discuss your position. 

This article is general information only and not legal advice. For advice specific to your circumstances, please contact our team.