Chick & Anor v Grosfeld (No. 3) [2012] NSWSC 1536

Chick & Anor v Grosfeld (No. 3) [2012] NSWSC 1536

Clause 18 of the will entitles the executor to charge professional rates only for work that a lay (non-accountant) executor would have been justified in retaining an accountant to perform for the estate, not for all executorial work; beneficiaries are not estopped from disputing the executor’s entitlement to fees beyond those permitted by the proper construction of the will.

Parties
1st Plaintiff: Murray Chick; 2nd Plaintiff: Kimberley Runia; Defendant: Johannes Theodorus Grosfeld
Jurisdiction
Australia
Judgment Date
13 December 2012
Procedural Posture
Separate Question / Post Removal, Determination of Executor's Entitlement to Remuneration
Outcome
Declarations/orders to be made only relating to construction of clause 18; parties to be heard as to precise form. Mr Grosfeld not entitled to charge hourly professional rate for all executorial work; only for work justifiably retained by a lay executor.
Legal Topics
Executor Remuneration, Construction of Will Clauses, Estoppel in Probate Proceedings
Wills Probate and Administration Executor Remuneration Construction of Will Clauses Estoppel in Probate Proceedings

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Parties

Murray Chick

1st Plaintiff

Kimberley Runia

2nd Plaintiff

Johannes Theodorus Grosfeld

Defendant

Procedural Posture

Separate Question / Post Removal, Determination of Executor's Entitlement to Remuneration

Legal Issues

  1. 1 Whether executor who is an accountant is entitled to charge professional rates for all executorial work under the construction of clause 18 in the will
  2. 2 Whether beneficiaries are estopped from denying executor's entitlement to charge fees as claimed

Ratio Decidendi

Clause 18 of the will entitles the executor to charge professional rates only for work that a lay (non-accountant) executor would have been justified in retaining an accountant to perform for the estate, not for all executorial work; beneficiaries are not estopped from disputing the executor’s entitlement to fees beyond those permitted by the proper construction of the will.

Court Disposition

Declarations/orders to be made only relating to construction of clause 18; parties to be heard as to precise form. Mr Grosfeld not entitled to charge hourly professional rate for all executorial work; only for work justifiably retained by a lay executor.

Orders

  • Parties to be heard on precise declaration or orders consistent with construction of clause 18;
  • Registrar to determine quantum of fees properly payable on passing of accounts.