1. The Respondent is an Australian lawyer, having been admitted to the legal profession on 2 March 1959.
2. The Respondent retired from legal practice on 30 June 2006, from which date he did not seek to renew his local practising certificate.
3. Prior to his retirement the Respondent was previously a partner and a legal practitioner employee at the firm Birch Ross & Barlow (the law practice).
4. Another former partner of the law practice was William L. Ross (Mr Ross)
5. Mr Ross died on 5 July 2010. Mr Ross died testate, his last will being that dated 6 May 2005 (Mr Ross' will).
6. Mr Ross' will appointed the Respondent and John David Maguire (Mr Maguire) a principal of the law practice executors and trustees of Mr Ross' will.
7. Mr Ross' will bequeathed his estate to his four daughters in equal shares.
8. The Inventory of Assets and Liabilities sworn by the Respondent and Mr Maguire on 13 August 2010 in the matter of Mr Ross' will deposed to assets of Mr Ross' estate of $3,101,635.25 and liabilities of $1,206.50, being $3,100,428.70 net.
9. Mr Ross' will authorised a trustee of Mr Ross' will:

'to charge commission at such rate or rates as he shall consider reasonable having regard to the duties performed and responsibilities undertaken ...'

1. The Respondent undertook very little or no work in the administration of the estate of Mr Ross; this work was performed by the law practice, for which the firm invoiced the estate $21,877.36 + GST on 22 March 2011 and $3,500 + GST on 26 October 2011.
2. On 22 March 2011 Mr Maguire wrote to the beneficiaries of Mr Ross' estate among other things to seek their authority for the executors of Mr Ross' estate to charge executors' commission of 4% on Mr Ross' estate. The inadequacy of this letter is addressed in the reasons given in proceeding J12/2014 concerning Mr Maguire.
3. An undated document styled 'Estate of William Louis Ross - Statement of Receipts and Expenditure from 6/7/2010 to 21/3/2011' indicates that the executors of Mr Ross' estate retained executors' commission of $120,000. This amount represents 4% of $3,000,000. Mr Maguire received half of this amount, being $60,000. The Respondent received the other half of this amount, being $60,000.
4. The Respondent has retained the amount of $60,000 which he was paid as executor's commission.

1. Misconduct at common law, within the inclusive definition of professional misconduct of section 4.4.3(1) of the Act, in that the Respondent's conduct - of being paid, accepting and retaining $60,000 by way of executor's commission from the estate of Mr Ross in circumstances where there was no basis for him to do so - would reasonably be regarded as disgraceful or dishonourable by legal practitioners of good repute and competency.

1. As set out in the application for order, executors' commission can be paid to compensate an executor who also acts in a professional capacity as administrator of an estate for his or her personal pains and trouble in that administration. The pains and trouble must be over and above and in addition to those experienced in the normal course of carrying out professional duties as executor, which aspect is compensated for by the executor issuing a bill for his or her professional services.

1. I am satisfied that Mr Ross' estate was not complex in nature. Further I am satisfied that the respondent suffered no personal pains and was put to no personal trouble in the administration of Mr Ross' estate.

1. Mr Barlow represented himself and did not dispute the alleged facts. His only defence was that he said he believed that Mr Ross would have wanted him to have the money. Nothing was produced to substantiate this.

1. Having regard to the above, the charge against the respondent is proved.

1. The respondent and Mr Maguire acted jointly as executors in appropriating $60,000 each as commission and it is appropriate that they be jointly and severally liable for repayment of $120,000.00 to the estate. Similarly, they should be jointly and severally liable to pay interest to the estate in respect of the money from the date of appropriation until repaid in full. It is to be noted that both Mr Barlow and Mr Maguire were invited to make submissions to the Tribunal on the question of whether they should be jointly and severally liable for repayment of the $120,000.00. Neither took up the invitation.

1. The respondent is retired and has not held a practising certificate for eight years. In the light of the seriousness of the conduct giving rise to the charge, it is appropriate that he be prohibited from applying for a practising certificate at any time in the future.