CLAIM FOR EXECUTORS COMMISSION - Fiduciary duty of executor to beneficiaries - "Pains and troubles" - Walker & Ors v D'Allesandro

2 The will provided for Mr Peter Szanto, a principal of Trumble Szanto, a firm of solicitors, to be appointed as the executor of the will. Clause 6 of the will provided that:

"Any of my executors who practise a profession shall be entitled to be paid fees for work done by him or his firm on the same basis as if he were not one of my executors but employed to act on behalf of my executors and shall be entitled to apply to the Court for commission for his pains and trouble in addition."

3 In this application, Mr Szanto makes an application for executors commission pursuant to s.65 of the Administration and Probate Act 1958 (Vic) over and above the fees charged to the estate for the application of probate and the conveyance of the Hampton property. Section 65 of the Act provides that:

"It shall be lawful for the Court to allow out of the assets of any deceased person to his executor, administrator or trustee for the time being such commission or percentage not exceeding five per centum for his pains and trouble as is just and reasonable."

4 During the hearings which preceded the actual hearing of the application by me, some queries were raised by another Associate Judge regarding the administration account. In his latest affidavit, Mr Szanto addresses these queries and provides a Revised Gross Corpus of $1,021,405.08, which is agreed as being the relevant figure for the purposes of this application.

5 The table below provides an indication of the range of commission that might be allowed if commission was to be calculated on a percentage basis:

6 The Law Institute of Victoria conducted an assessment of the value of the work carried out by Mr Szanto in respect of the administration of the estate ("assessment") and valued the work done by Mr Szanto and his firm (based upon hourly charge out rates and scale costs and disbursements) at $20,755.58. This is in addition to the modest amounts charged to the estate by Mr Szanto's firm for the application for probate and the conveyance of the Hampton property. Counsel for Mr Szanto confirmed that the assessment did not include time spent by Mr Szanto in pursuing the claim for executors commission; that is, time spent on correspondence with the beneficiaries and their solicitor in respect of the claim and instructing his solicitors. It is apparent from a review of the assessment that there has been no "double dipping" by Mr Szanto and/or his firm: that is, he has not attempted to charge legal fees for the work carried out in his capacity as executor as opposed to work carried out in his capacity as solicitor for the estate.

7 Accordingly, if Mr Szanto were to receive commission of 2.0%, that would provide reasonable compensation for the work done by him in the administration of the estate, that is, his "troubles". However, limiting his commission to that amount would make no provision for his "pains": that is, the responsibility, anxiety and worry generated by Mr Szanto's executorial function.

8 In his application, Mr Szanto seeks the following orders:

(a) he be paid and retain out of the estate the sum of $35, 749 plus GST in respect of executor's commission (equivalent to 3.5% of the Revised Gross Corpus exclusive of GST);

(b) his costs of and incidental to his application for commission be paid from the estate, including the sum of $22,708.20 already paid to his solicitors from the estate, reserving to the beneficiaries the rights under Division 7 of part 3.4 of the Legal Profession Act 2004 to review or tax those costs;

(c) he be paid from the estate the sum of $4,934.15, being the amount payable for the assessment ; and

(d) the beneficiaries' costs of and incidental to the application for executors commission be paid by the estate.

9 Counsel for Mr Szanto submitted an amount equivalent to 3.5% of the estate appropriately reflected the nature and the amount of the work done by Mr Szanto in the administration of the estate, the benefits that this work generated for the estate, the capacity of the estate to pay for this work, and the atmosphere in which his executorial work was carried out. In paragraph 116 of his affidavit sworn 28 August 2009, Mr Szanto stated:

"My perception is that my executorship has been carried out in an atmosphere of suspicion and distrust on the part of the beneficiaries. I have been subject to continuous scrutiny and review".

10 One unusual matter regarding the administration of this estate is that the Australian beneficiaries were represented by a solicitor, Ms Joy Popovska of Joy Popovska & Associates, from the very beginning. I have no evidence before me as to the reasons why the beneficiaries considered it to be prudent to be represented by solicitors. In any event, Ms Popovska informed Mr Szanto of Mrs Gray's death by letter dated 19 May 2005, and provided various documents and useful information regarding the assets and beneficiaries of the estate. Most, but not all, of the negotiations between Mr Szanto and the beneficiaries regarding his claim for executors commission were conducted between Mr Szanto and Ms Popovska (and later between Mr Szanto's solicitors and Ms Popovska).

11 Mr Szanto first made a claim for executors commission on about 9 December 2008. On this date, he sent a letter to each of the beneficiaries ("9 December 2008 letter"), the text of which is reproduced in full below:

"I refer to the above estate and to my previous correspondence.

I write to advise that the administration of the estate is nearly complete and I am only waiting for a final tax clearance to be obtained from the Australian Taxation Office, something I anticipate receiving within the next 4-6 weeks. In addition, there is still one bank account which has not been finalised.

I also need to make arrangements about shipping of the jewellery to the Hungarian beneficiaries and to Klara Sirokman in the USA. This is proving to be more difficult than I envisaged and is taking longer than anticipated.

I was hoping to finally distribute the estate prior to Christmas but it now looks like the best I can do is to have an interim distribution, holding back a sum of money as provision for any tax liabilities that the Australian Taxation Office may advise me of.

The estate comprises approximately $885,000, of which your entitlement is 12.5%, that is approximately $110,000. The precise amount will only be capable of calculation after the tax clearance is obtained and the expenses of the estate and executor's commission are paid. I will provide you with full accounting prior to distribution of your share.

Under Victorian law I, as the executor of the estate, am entitled to apply to the Supreme Court in its Probate jurisdiction for an award of executors commission for my pains and trouble. That commission is limited to not more than 5% of the gross value of the estate, ie, approximately $48,750. I estimate that the legal costs of making such an application will be in the vicinity of $6-7,000 which would need to be paid, in addition to the commission.

I am prepared to accept 3.5% of the estate in lieu of commission, provided that all of the beneficiaries agree. Acceptance of this proposal will mean that I need not apply to the Court, thereby saving the estate the $6-7,000 referred to above. If not all beneficiaries are agreeable to this, then I will have no alternative but to proceed to make the application.

Please indicate your attitude to this proposal by signing the enclosed duplicate page of this letter where indicated below and placing a tick or cross in one of the two boxes. Please return the signed duplicate to:

Peter Szanto, Executor of the estate of Zsuzanna Gray

c/- Trumble Szanto Lawyers

PO Box 234 Prahan Vic 3181

Please note that I cannot proceed to finalise the administration until all of the beneficiaries indicate their attitude by returning the duplicate letter.

I await your earliest convenience."

12 At the end of the letter, provision was made for the relevant beneficiary to tick a box next to either of the following:

"I accept the foregoing proposal and do not require an application to the Supreme Court"

"I do not accept the foregoing proposal and I require an application to the Supreme Court"

13 A copy of the letter sent to the beneficiaries was also forwarded to Ms Popovska, who was at the time only acting for the Australian beneficiaries, the text of which is reproduced in full below:

"I refer to the above matter and to previous correspondence.

I have received from Ken copies of his MLC documentation. As none of the beneficiaries have paid those funds to me, you may now disregard my request in my letter to you dated November 11, 2008.

I also refer to the matter of the chattels which were purchased from the estate by some of your clients. Although this is a trivial issue, I need to keep the books in order. I have asked a couple of times that the funds actually be paid to me but as I received no response, I now request your urgent advices as to the sum of money owed by your clients, providing me with the amount and the name of the beneficiary concerned.

I was hoping to finally distribute the estate prior to Christmas but it does not appear that this will be possible. Nevertheless, I am prepared to distribute the bulk of the estate, leaving a provision for any potential tax liability. To do this, we will need to reach agreement in relation to executors commission and I would also wish to have appropriate releases signed by each of the beneficiaries.

Enclosed please find a copy of the letter I sent to Ken, for your information. I sent similar letters to each of the other seven beneficiaries. If the proposal contained in the letter is acceptable to all of the beneficiaries and this is confirmed by a signed copy of the letter being returned to my office, I will prepare releases and forward them to your office or, if you prefer, directly to the beneficiaries. Once the executed releases are returned to me, I will distribute most of the estate, leaving the issue of any tax liability to be sorted out in the New Year.

If you wish to discuss any aspect of the foregoing, please do not hesitate to telephone me."

14 Following this letter, Mr Szanto entered into correspondence with Ms Popovska regarding his claim for executor's commission. The thrust of that correspondence was that the beneficiaries were concerned that Mr Szanto was "double dipping" that is, claiming legal fees for work carried out by him in his role as executor, and that the administration of the estate was taking too long. Ms Popovska sought an accounting of the administration of the estate, and a detailed bill of costs in respect to Mr Szanto's legal work and executorial duties. Further, in a letter dated 16 December 2008, Ms Popovska stated:

"It is not appropriate to endeavour to procure the consent of the beneficiaries, in whose interest you as executor are supposed to act, by creating the impression that the estate will not be able to be distributed until agreement to commission is forthcoming".

15 In response, on 17 December 2008, Mr Szanto sent the following letter to Ms Popovska:

"Thank you for your faxed letter of yesterday's date which awaited me this morning.

I am afraid you still appear to be under a misapprehension concerning my proposal. As explained in my last letter, it is not my intention to charge the beneficiaries of the estate for both work I have done in relation to administration of the estate and executor's commission on top of that. I refer you to the second paragraph of my abovementioned letter, dated December 11, 2008 in which I clearly stated that any costs in my file which are attributable to administration of the estate would be deducted from the amount of executor's commission and hence the only amounts which will be payable to Trumble Szanto Lawyers will be the bill for conveyancing, as mentioned in that paragraph, and the scale amounts relating to the application for a grant of probate and related issues. It is precisely because I wanted to avoid any "double dipping" that I have chosen this method and, frankly, I would have thought that the beneficiaries would consider it an attractive proposal.

The bottom line is that Trumble Szanto would be paid for the conveyancing work and for the probate application. Both of these amounts are relatively minor and all of the work that I personally have done in relation to administration of the estate would be included in the amount I receive by way of executor's commission.

Your letter goes on to some length, about the undesirability of me receiving double payment - which is exactly the result I sought to avoid - and I believe I would avoid - if my proposal was accepted. Your clients may wish to reconsider the matter in the light of this explanation.

I have never intended to evoke such controversy with my proposal and I find it disappointing and unpleasant to be arguing about legal costs, on a basis which presupposes that I may be seeking to enrich myself from the estate over and above what I would fairly be paid in ordinary circumstances. Such allegations do nothing to uphold the goodwill which previously existed between the beneficiaries and myself. I have acted as the executor of many estates over many years and I have never been involved in any costs dispute and I have never had any complaint from any beneficiary that the estate has been overcharged.

There is very little time left now and I have not had any response from the overseas beneficiaries in any event. I am of course assuming that the correspondence emanating from your office is sent only on behalf of the four Australian beneficiaries.

If the issue of executor's commission can be resolved amicably, with the agreement of all beneficiaries, I will then feel comfortable to make an interim distribution, but not before then. If the controversy introduced in your recent correspondence prevails after the explanation I have again provided in this letter then please consider my proposal withdrawn and I will continue with finalisation of the administration of the estate and, once it is completed, I will proceed to make an application for executor's commission in the usual way.

Thank you for your co-operation and I await hearing from you."

16 In January 2009 Mr Szanto instructed Dibbs Abbott Stillman (now Thompson Playford Cutlers) to act on his behalf in relation to his claim for executor's commission, following which further correspondence regarding Mr Szanto's claim for executors commission was conducted between the solicitors. Not all of this correspondence is before the Court in this application, as it was referred to by both counsel before me that "without prejudice" negotiations were conducted up to the time of the filing of this application on 28 August 2009.

17 Notwithstanding the contents of the correspondence, I was informed by counsel during the course of the hearing of the application that a substantial interim distribution of the estate has been made to the beneficiaries and that the issue of executors commission (together with the legal costs associated with the claim) is the only outstanding issue in the administration of the estate.

18 The beneficiaries submitted that the application should be dismissed, without prejudice to the right of Trumble Szanto to charge legal fees for Mr Szanto's application for probate and for the conveyance of the Hampton property. In summary, the work done did not justify executors commission of 3.5%, and in any event, Mr Szanto had conducted himself in a manner which disentitled him from receiving executors commission, namely:

(a) he put pressure upon the beneficiaries to accede to his claim for executor's commission by giving the impression that an interim distribution could not be made unless they agreed to his claim;

(b) he refused to give full details of the work done to justify the commission;

(c) he paid legal fees incurred by him in negotiating his claim for executor's commission from the funds held by him on behalf of the estate, at least initially; and

(d) he continued to incur substantial legal fees (approximately $67,000, and possibly more) in prosecuting his application, presumably with the expectation that those fees would be payable from the estate.

19 Counsel for the beneficiaries submitted that this case was on all fours with the judgment of Justice T Forrest in Walker & Ors v D'Allesandro [2010] VSC 15, a judgment delivered after the hearing of this application. Given the issues raised by that judgment, I provided the parties with an opportunity to make further written submissions in this application.

20 In Walker & Ors v D'Allesandro, the beneficiaries of the estate brought proceedings against the executor, also a solicitor, to set aside an agreement with respect to executors commission, on the basis that as a fiduciary seeking to profit at the expense of his principals, he was required to obtain the informed consent of the beneficiaries, and that in that case, no such informed consent had been obtained. In that case, there was a finding that the executor had breached his fiduciary duty by pressuring the beneficiaries to agree to a payment (by implying there could be no distribution to the beneficiaries until the beneficiaries agreed to the claim) and had also failed to provide detailed information regarding the work done which was said to have justified the commission.

21 Under cross-examination Mr Szanto rejected the suggestion that the purpose of the 9 December 2008 letter was to pressure the beneficiaries into agreeing to any commission being paid to him, or being paid at a particular rate. He simply considered that the issue of executors commission was a matter that had to be dealt with prior to the finalisation of the administration of the estate. Further, when questioned about the number and nature of attendances referred to in the assessment, he was adamant that they were attendances which were necessary and proper for the administration of the estate.

22 In his written submissions regarding the impact of the judgment in Walker v D'Allesandro upon the outcome of Mr Szanto's application, counsel for Mr Szanto submitted that the present application is materially different from Walker v D'Allesandro in a number of respects:

(a) first, Walker v D'Allesandro was a case where the beneficiaries sought to set aside an agreement to pay executors commission, not an application for executors commission;

(b) the beneficiaries (or at least the Australian beneficiaries) had legal representation at the time the 9 December 2008 letter was sent to the beneficiaries. Mr Szanto provided Ms Popovska with a copy of the 9 December 2008 letter, and the beneficiaries had an opportunity to obtain legal advice on the appropriateness of his claim. Indeed, the subsequent correspondence between Mr Szanto and Ms Popovska indicated that such advice was provided; and

(c) a particular concern raised in Walker v D'Allesandro was the prospect of the solicitor "double dipping". Mr Szanto was at pains to point out he maintained complete separation between his legal files and his executorial files. Further, it was Ms Popovska's failure to appreciate that it was apparent that there had been no "double dipping" that was the cause of the deteriorating relationship between the parties and the need for Mr Szanto to make an application to the Court.

23 Counsel submitted that 3.5% commission (plus GST) was an appropriate amount to award to Mr Szanto, as the amount verified by the assessment reflected only the "troubles" incurred by Mr Szanto in the administration of the estate. The balance of the claim (approximately $15,000) would be payable on account of Mr Szanto's "pains", which counsel submitted included:

• the difficulties experienced by Mr Szanto in his dealings with AGL and Westpac to finalise the estate;
• the difficulties in selling the Hampton property in a flattening property market;
• the difficulties experienced by Mr Szanto in what was described as his "frustratingly lengthy and unsuccessful attempts to distribute the deceased's jewellery in specie to the overseas beneficiaries through commercial channels";
• the increasingly rancorous atmosphere in which the executorship was carried out; and
• the opportunity cost to Mr Szanto arising out of Mr Szanto's attendances upon Thomson Playford Cutlers for the purposes of making and pursuing this application.

(a) having regard to Mr Szanto's pains and troubles in the administration of the estate, and the usual considerations governing the award of executors commission as set out in Patterson v Halliday [2003] VSC 298, what would be an appropriate amount to award Mr Szanto by way of commission (in the absence of any disentitling conduct); and

(b) whether any conduct of Mr Szanto in his dealings with the estate and the beneficiaries, in particular conduct of the type disapproved of in Walker v D'Allesandro, should disentitle him from receiving executor's commission or affect the amount of the commission which was to be awarded.

25 Counsel for Mr Szanto submitted that the sum of $20,755.58 ought be awarded to Mr Szanto on account of his "troubles", being the value of his work as documented in the assessment.

26 The administration of the estate, while not without its difficulties, was not unduly complex or out of the ordinary, save for the dispute regarding commission which is currently before the Court. Some of the difficulties included:

(a) the sale of the Hampton property took longer than expected as a result of the sudden decline in the residential property market in 2008;

(b) there were difficulties in recovering certain funds on term deposit at Westpac owing to administrative errors by the bank;

(c) the task of transporting and distributing the deceased's jewellery among the overseas beneficiaries proved to be unduly complicated;

(d) some difficulties were caused by AGL's failure to properly close and finalise the deceased's electricity account;

(e) Mr Szanto spent a substantial amount of time corresponding with MLC and Ms Popovska (on behalf of the Australian beneficiaries) regarding the payment of the deceased's death benefits to the estate. Contrary to the original agreement between the parties, the death benefit was paid to the Australian beneficiaries, rather than the estate, which reduced Mr Szanto's capacity to meet the liabilities of the estate, and necessitated correspondence between the parties to ensure that the entitlements of the overseas based beneficiaries were met; and

(f) the need to communicate with eight different beneficiaries, most of whom live outside Victoria (noting that for the entire period some or all of the beneficiaries were represented by their current solicitor, Ms Joy Popovska, which in turn may have created its own complications);

27 From my review of the affidavits sworn by Mr Szanto and the itemised costs assessment, I conclude that Mr Szanto fulfilled his responsibilities as executor conscientiously and meticulously. Indeed, the tenor of cross-examination by counsel for the beneficiaries contained an implied criticism on the beneficiaries' part that his attention to the minutiae of the administration was excessive.

28 Having regard to the matters itemised in the assessment, some might consider Mr Szanto's attention to matters of detail to be punctilious to the extreme; it might also be that the value if the work to the estate was not as great as submitted on behalf of Mr Szanto. By way of example, the payment of compensation by Westpac as a result of Mr Szanto's complaint to the Banking Ombudsman was almost exactly offset by the charges in the assessment referable to the complaint, although it may be that the making of the complaint precipitated action on the part of Westpac in paying the deceased's funds to the estate.

29 However, it is difficult to criticise an executor for being overly conscientious in the performance of their duties. The tasks itemised in the assessment verifies the work done. Therefore, I conclude that the amount of $20,755.58 (plus GST if applicable) represents a proper amount payable to Mr Szanto on account of his "troubles". Further, it is clear on the evidence that there is no element of "double dipping" with respect to the tasks referred to in the assessment.

30 The sum of $20,755.58 represents approximately 2.0% of the estate (with any liability for GST being a liability which ought to be borne by the estate). Given the size of the estate and the moderate degree of complexity of the administration of the estate, this is not an excessive sum.

31 What amount, if any, should be allowed in respect of Mr Szanto's "pains"? In my view, Mr Szanto must bear a substantial degree of responsibility for the anxiety and worry suffered by him in his executorial function because of the manner in which he made and pursued his claim for executors commission, as discussed below.

32 First, the terms of the letter of 9 December 2008, framed in substantially similar terms to the letter criticised in Walker v D'Allesandro, are not acceptable. The letter would no doubt have the effect of providing the beneficiaries with the impression that any substantial distribution of the estate was contingent upon the beneficiaries agreeing to commission at the rate claimed by Mr Szanto. That some of the beneficiaries were represented by a solicitor could mitigate against any adverse conclusions that might be drawn, but in any event, it is not an appropriate representation for a fiduciary to make. There is no evidence to suggest that Mr Szanto would not have sent such a letter if the parties had not been represented by a solicitor (rather his evidence is that he saw nothing improper about the terms of the 9 December 2008 letter) and, he did send the letter to the overseas beneficiaries, who were not at that time represented, and were presumably completely reliant upon Mr Szanto to advise them of the position under Victorian law. The 9 December 2008 letter did not invite the beneficiary to obtain independent legal advice. The thrust of the letter was not only that the distribution of the estate would be held up by the need for Mr Szanto to make a claim for executor's commission, but that the need to make an application would cost the estate further funds. The letter did not inform the beneficiaries that they could contest the claim for commission in any application to the Court, or that it would ultimately be a matter for the Court to determine what was an appropriate amount of commission.

33 Secondly, the refusal of Mr Szanto to provide a detailed bill of costs (or some other document which verified the work he had done) for his executorial work to the beneficiaries on their solicitors is not acceptable. Although it is not entirely clear when the assessment was prepared and provided to Ms Popovska on behalf of the beneficiaries, the dates of the items in the assessment caused me to conclude that it was in May 2009 at the earliest, well after the letter of 9 December 2008. Provision of the assessment or a bill of costs to the beneficiaries would have demonstrated to the beneficiaries' that any concerns regarding double dipping were unfounded, and would be required in any event to enable the beneficiaries to make a meaningful assessment of Mr Szanto's claim for executors commission.

34 Finally, utilising the funds of the estate for the payment of his legal costs to bring his claim for executors commission in the absence of the consent of the parties or an order of the Court was inappropriate in all the circumstances, particularly given that the costs actually paid (let alone the costs incurred after that date) well exceeded the estimate provided to the beneficiaries in the letter of 9 December 2008. Making a claim for commission is not of itself an executorial function in respect of which the costs should automatically be borne by the estate. Ultimately, the liability for the costs of any such application is and should be a matter for the Court, and no party should presume that the Court will invariably order that such costs would be recoverable from an estate. The question of costs is always a matter for the discretion of the Court, having regard to all of the circumstances of the case.

35 I will order that Mr Szanto be paid the sum of $20,755.58 from the estate by way of executor's commission. Further, Mr Szanto should be reimbursed from the estate the sum of $4,934.15, being the costs of the assessment.

36 First, Mr Szanto should be adequately recompensed for his time and costs spent in the administration of the estate. He is a professional person, and is entitled to compensation for his time at an appropriate rate. It was not seriously contended that Mr Szanto had not done the work, or that the work was not necessary. I am content to rely upon the assessment, and, given the assessment was prepared at the insistence of the beneficiaries, the costs of the assessment should be borne by the estate.

37 Secondly, notwithstanding my criticisms of 9 December 2008 and other aspects of his conduct in relation to his claim, I do not consider that this should disentitle Mr Szanto from receiving adequate compensation for work properly carried out by him in the administration of the estate. There was no suggestion in Walker & Ors v D'Allesandro that the executor was not allowed to claim or was disentitled from claiming any executor's commission: the Court simply found that the agreement procured by the executor ought to be set aside. The executor would still be entitled to make an application to the Court in the ordinary way.

38 However, I do consider that Mr Szanto's conduct should affect his entitlement to a further amount in respect of his "pains". In my view, his "pains" were substantially of his own making. Further, while some of those "pains" were attributable to other matters outside his control, such as the difficulties with distributing jewellery and his dealings with Westpac and AGL, I consider that he has been adequately compensated for those pains by being able to charge for his attendances in relation to those matters at a professional rate rather than at a clerical or administrative rate. In my view, when a professional person such as a solicitor or an accountant acts as an executor, and charges the estate in accordance with his or her usual professional fees for the time spent by him or her on executorial duties, that rate would generally, (but not always), cover not only their "troubles" but also reflects, at least to some extent, the degree of responsibility involved in their administration of the estate.

39 This leaves the question of the parties' costs of this application, including the costs already paid out of the estate to Mr Szanto's solicitors.

40 I will hear from the parties on the question of costs once the parties have had an opportunity to consider my determination and these reasons. Further, it may be that any "without prejudice" communications between the parties may be relevant to the question of costs.