Rustig Estate (Re)

Rustig Estate (Re)

Where wills expressly authorized the solicitor to be proctor and charge professional fees, those solicitor fees are allowable but must be reasonable and subject to taxation; executor commission under s.76 applies only to amounts actually 'received' by the executor (direct devises are excluded); commissions must be assessed by reference to size, responsibility, time and skill, and advances of executor commission require court approval. Applying these principles, the court reduced some claimed proctor fees and fixed commissions at 2.5% on assets received in the Rustig (Wolfgang) estate and 3% on the received portion of the Eveline estate, producing the specified allowed amounts.

Citation
2002 NSSC 210
Parties
Deceased/testator: Joachim Wolfgang Rustig; Deceased/testatrix/executrix: Eveline Liselotte Rustig; Executor and Solicitor: David A. Grant
Court
Supreme Court of Nova Scotia
Jurisdiction
Canada
Judgment Date
12 September 2002
Procedural Posture
Probate (court of Probate, Supreme Court of Nova Scotia) / Decision on Assessment of Solicitor Fees, Proctor Fees and Executor Commissions
Outcome
Applicant's accounts allowed in part; specific reductions and commissions fixed; net balance payable to applicant calculated.
Legal Topics
Executor Commission, Solicitor Fees, Proctor Fees, Taxation of Costs, Advances From Estate
Source Language
English
Probate Trusts and Estates Professional Fees Civil Procedure Executor Commission Solicitor Fees Proctor Fees Taxation of Costs +1 more

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Parties

Joachim Wolfgang Rustig

Deceased/testator

Eveline Liselotte Rustig

Deceased/testatrix/executrix

David A. Grant

Executor and Solicitor

Procedural Posture

Probate (court of Probate, Supreme Court of Nova Scotia) / Decision on Assessment of Solicitor Fees, Proctor Fees and Executor Commissions

Legal Issues

  1. 1 Appropriate solicitor/proctor remuneration for services to Joachim Wolfgang Rustig estate
  2. 2 Appropriate solicitor/proctor remuneration for services to Eveline Liselotte Rustig estate
  3. 3 Appropriate executor commission for David A. Grant re Joachim Wolfgang Rustig estate

Ratio Decidendi

Where wills expressly authorized the solicitor to be proctor and charge professional fees, those solicitor fees are allowable but must be reasonable and subject to taxation; executor commission under s.76 applies only to amounts actually 'received' by the executor (direct devises are excluded); commissions must be assessed by reference to size, responsibility, time and skill, and advances of executor commission require court approval. Applying these principles, the court reduced some claimed proctor fees and fixed commissions at 2.5% on assets received in the Rustig (Wolfgang) estate and 3% on the received portion of the Eveline estate, producing the specified allowed amounts.

Court Disposition

Applicant's accounts allowed in part; specific reductions and commissions fixed; net balance payable to applicant calculated.

Orders

  • Allowed legal fees and solicitor/proctor work and HST resulting in total legal fees and commission fixed at $59,013.82 CAD.
  • Deducted previously paid amount of $43,669.17 CAD (57 invoices paid).