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Solicitor-executor’s work not legal work

February 11th, 2007 · No Comments

Patterson v S [1998] VLPT 11 is a decision of the Legal Profession Tribunal dealing with a sole practitioner who was the executor of a priest’s will. It held that executors’ work carried out by an executor who happens to be a solicitor is not legal work, and so fees for the work were not within a clause in the will entitling professional executors to charge their “usual or reasonable charges”.The will said:

‘I direct that any of my trustees who is/are engaged in any professional business shall be entitled to make usual or reasonable charges for work done by him in connection with my Estate.’

Registrar Howell said:

‘The nature of [the solicitor's] “professional business” is that of a solicitor, with the result that [he] is entitled to retain out of the estate what is variously described in the authorities as remuneration or as a legacy for his work as a solicitor.”

The beneficiaries of the priest’s will sued the estate’s solicitor pursuant to a special standing granted to them by the Legal Practice Act, 1996 to quibble with fees charged by the estate’s solicitor. When the Act was repealed the provision was to be found in s. 122(1)(a)(ii) (see now 4.2.2(2)(a)(ii) Legal Profession Act, 2004).

Registrar Howell then held that the quoted clause of the will did not allow an executors commission to be charged, noting that executors’ work done by a solicitor was not legal work:

‘I do not regard a solicitor, when acting as an executor, to be practising as a solicitor in any of the senses set out by Mr. Justice J.D. Phillips in Cornall v Nagle [1995] 2 VR 188 @ 210. Consequently, the charging clause in the will does not authorise the charging of a commission by [the solicitor] on the basis that non-legal work performed by him in his capacity as executor is part of the practice of a solicitor. In any case, the language of the charging clause extends only to ‘usual and reasonable charges for work done’, and not to a commission which normally is fixed as a percentage of the value of the estate rather than in respect of “work done”.’

Having come to that conclusion, however, it is arguable that Mr Howell exceeded his jurisdiction. What was before him, he said, was a s. 122(1)(a)(ii) dispute, namely:

a dispute in relation to legal costs between a legal practitioner and a beneficiary under a will in relation to which the legal practitioner has provided legal services in respect of which those costs are charged.

The Legal Profession Tribunal’s jurisdiction in relation to disputes between the beneficiaries of estates and estates’ solicitors was limited only to these kinds of disputes. The finding that executors’ work performed by executors who happen to be solicitors is not lawyers’ work (and accordingly, presumably, not “legal services”) is apparently inconsistent with the purported exercise of jurisdiction in relation to fees other than legal costs charged in respect of the provision of legal services. Nevertheless, the Tribunal:

  • identified a contract between the beneficiaries and the executor to charge executor’s commission;
  • set it aside on the basis of a breach of the exector’s fiduciary duty qua executor, not qua solicitor, in failing to disclose before procuring the beneficiaries’ consent to the executor’s commission that he intended to charge both the commission and legal fees; and
  • disallow charges by the executor to the estate for the costs of defending the beneficiaries’ suit on the basis that the executor’s “inequitable conduct” had caused the litigation.

The last point required Registrar Howell to make an exception to the general rule that ‘an executor usually is entitled to be indemnified by the estate in respect of legal costs incurred in conducting proceedings on behalf of the estate.’ In identifying the exception he found satisfied, Registrar Howell said:

‘such an indemnity is subject to limits, as appears from the following passage from the judgment of Irvine C.J. in In the Will of Thomas Field [1931] VLR 37 @ 50:

“They [executors, administrators, trustees and mortgagees] may be deprived of their right to have those costs out of the estate if they are shown to have been guilty of such inequitable conduct, or, as it is expressed in some of the authorities, such violation or culpable neglect of duty, as has caused the litigation or increased the costs thereof.”’

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Tags: "legal services" · conflicts · duty and interest · Ethics · Fiduciary duties · Legal Practice Act · Legal Profession Act · Professional fees and disbursements