Nedbank Limited v Gordon N.O and Others (8938/17) [2019] ZAGPPHC 460 (16 August 2019)

Nedbank Limited v Gordon N.O and Others (8938/17) [2019] ZAGPPHC 460 (16 August 2019)

The court held that the remuneration of executors is strictly governed by section 51(1) of the Administration of Estates Act. An executor, even if an attorney, is only entitled to remuneration as an executor and not for professional fees for work done as an attorney in administering the estate. The costs awarded by the court belong to the estate and must be reflected in the Liquidation and Distribution Account, not paid to the executors or their attorneys. The Taxing Master acted correctly in disallowing the sum claimed as attorney's fees, as established case law prohibits an executor from charging professional fees for work performed in that dual capacity. The principle is to prevent...

Citation
[2019] ZAGPPHC 460
Parties
Applicant: Nedbank Limited; Respondent: Solomon Gordon N.O.; Respondent: Estee-Elizabeth Maman N.O.; Respondent: Desiree Kahn N.O.; Respondent: The Master of the High Court (Johannesburg - Deceased Estates Department)
Court
North Gauteng High Court, Pretoria
Jurisdiction
South Africa
Judgment Date
16 August 2019
Case Number
8938/17
Procedural Posture
Review Application / Review of Taxation Under Rule 48(1) of the Uniform Rules of Court
Outcome
Review application dismissed; Taxing Master's decision to disallow the sum of R52,267.50 upheld.
Judges
Mabuse
Legal Topics
Review of Taxation, Executor Remuneration, Administration of Estates Act, Fiduciary Duties, Costs Award
Civil Procedure Land and Property Review of Taxation Executor Remuneration Administration of Estates Act Fiduciary Duties Costs Award

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Parties

Nedbank Limited

Applicant

Solomon Gordon N.O.

Respondent

Estee-Elizabeth Maman N.O.

Respondent

Desiree Kahn N.O.

Respondent

The Master of the High Court (Johannesburg - Deceased Estates Department)

Respondent

Procedural Posture

Review Application / Review of Taxation Under Rule 48(1) of the Uniform Rules of Court

Legal Issues

  1. 1 Whether an executor who is also an attorney may recover professional fees for work done in his capacity as attorney when administering a deceased estate.
  2. 2 Whether the Taxing Master acted correctly in disallowing the sum of R52,267.50 claimed as attorney's fees by the executor.
  3. 3 Whether the costs awarded by the court belong to the estate or to the executors' attorneys.

Ratio Decidendi

The court held that the remuneration of executors is strictly governed by section 51(1) of the Administration of Estates Act. An executor, even if an attorney, is only entitled to remuneration as an executor and not for professional fees for work done as an attorney in administering the estate. The costs awarded by the court belong to the estate and must be reflected in the Liquidation and Distribution Account, not paid to the executors or their attorneys. The Taxing Master acted correctly in disallowing the sum claimed as attorney's fees, as established case law prohibits an executor from charging professional fees for work performed in that dual capacity. The principle is to prevent...

Court Disposition

Review application dismissed; Taxing Master's decision to disallow the sum of R52,267.50 upheld.

Orders

  • The Taxing Master's decision to disallow the sum of R52,267.50 from the Respondents' Bill of Costs is upheld.
  • The review application is dismissed.