Re The Estate of D A Lindsay [2004] NSWSC 578

Re The Estate of D A Lindsay [2004] NSWSC 578

The Court held that, despite the invalidation of the solicitor's charging clause in the will due to the executor attesting the will, special commission may still be allowed for professional services where they benefit the estate. The Court exercised its discretion to fix both special (professional) and general (executorial) commission at a lump sum having regard to the simplicity of the administration, number and nature of beneficiaries, and the work done. Costs of the review were also allowed but were fixed to avoid disproportion by reference to sums recovered.

Jurisdiction
Australia
Judgment Date
28 June 2004
Procedural Posture
Application for Review / Judgment on Review of Deputy Registrar's Decision
Outcome
Special and general commission allowed; costs of review application allowed but fixed.
Legal Topics
['executors and Administrators' 'commission' 'professional Work' "invalidity of Solicitor's Charging Clause" 'costs of Review' 'quantum of Commission']
['succession' 'equity' 'probate'] ['executors and Administrators' 'commission' 'professional Work' "invalidity of Solicitor's Charging Clause" 'costs of Review' 'quantum of Commission']

Case Brief

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Procedural Posture

Application for Review / Judgment on Review of Deputy Registrar's Decision

Legal Issues

  1. 1 ['Whether special commission should be allowed for professional work performed by an executor/solicitor where the charging clause in the will is invalid' 'Appropriate quantum of general commission to be allowed to executor' "Appropriate costs to be allowed on review of Registrar's decision"]

Ratio Decidendi

The Court held that, despite the invalidation of the solicitor's charging clause in the will due to the executor attesting the will, special commission may still be allowed for professional services where they benefit the estate. The Court exercised its discretion to fix both special (professional) and general (executorial) commission at a lump sum having regard to the simplicity of the administration, number and nature of beneficiaries, and the work done. Costs of the review were also allowed but were fixed to avoid disproportion by reference to sums recovered.

Court Disposition

Special and general commission allowed; costs of review application allowed but fixed.

Orders

  • ['Special commission allowed: $8,335.50.' 'General commission allowed: $11,250 (rounded up from $11,159).' 'Total commission allowed: $19,585.' "Registrar's previous costs order ($2,500) stands." 'Costs of this application fixed at $1,000.']