Re Will and Estate of Macleod [2017] VSC 67 (23 February 2017)

The applicant retires from the partnership of Scanlan Carroll Business Lawyers.

The applicant initiates proceedings seeking judicial advice as to whether to initiate proceedings against Mr Jamieson in order to remove him as co-executor. Mr Jamieson was removed as executor in July 2012. The proceedings against Mr Jamieson remain ongoing ('the Jamieson proceedings').

The applicant initiates proceedings concerning an interest in an agribusiness (Percydale) investment ('the Percydale proceedings').

The applicant receives a written threat by post on a card addressed to his wife.[12] The card is in an envelope which contains approximately half a teaspoon of metallic coloured crystals, which the applicant recognises as Condy's crystals, or potassium permanganate. The applicant reports the matter to the police.

The applicant receives a written threat by post in a handwritten note.[13] He also reports this to the police.

The applicant receives a written threat by post in a handwritten note.[14] He also reports this to the police.

The applicant considers the threats related to the Percydale litigation. The reference to farm costs in this threat related to management fees which investors in the agri-business were due to pay and which, on legal advice, the applicant had ceased to pay.[15]

In addition, the applicant also receives threats / letters of demands from three of the other stakeholders in the Percydale litigation threatening legal action based on claims that his non-payment of management fees caused the demise of Percydale.[16]

The former residence of the deceased and his wife is sold.

Summons seeking orders for a commission or percentage of the estate issued by the applicant in this proceeding.

Orders made requiring the Attorney-General to file any objection by 19 February 2016.

First hearing date in this matter. No appearance by the AttorneyGeneral's office.

Directions hearing. Appearances by the applicant and the Attorney-General's office.

Upon request by the parties, the further hearing is adjourned until 11 October 2016.

7 The following evidence was before the Court:[17]

(a) affidavit of the applicant sworn 16 November 2015 (Exhibit 3);

(b) affidavit of the applicant sworn 19 April 2016 (Exhibit 1);

(c) affidavit of Amanda Lee Harrington, solicitor for the applicant, sworn 21 April 2016;

(d) affidavit of the applicant sworn 17 May 2016 (Exhibit 2); and

(e) affidavit of Sharelle Louisa Staff, solicitor for the applicant, sworn 17 May 2016; and

(f) summary of Income and Expenditure from July 2009 to June 2016, Estate of Donald Macleod and the Donald and Phyllis Macleod Trust Fund (Exhibit 4).

8 In addition to the evidence above, the applicant gave viva voce evidence at the hearing on 11 October 2016.

9 As at December 2015, assets held in the trust were $7,813,865 and, in the estate, $432,752.16. The total is $8,246,617.20. The applicant is not a beneficiary of the estate.

10 As to Phyllis' estate, which has effectively been merged into the trust, it was submitted it should be incorporated into the trustee commission component, as the applicant really administered Phyllis' estate. The appropriate analysis would be to order executor's commission on those assets retained or administered in the estate, and trustee's commission on those transferred to the trust.

Quantum of commission: usual incidents of executorship and elevating matters

11 The applicant says that beyond the usual incidents of executorship, there was personal involvement in very hostile litigation (the Jamieson proceedings and the Percydale proceedings) and death threats to the applicant and his wife in respect of the Percydale proceedings. An elevated amount of commission is sought because of the difficulty of the litigation combined with the death threats.[18]

12 In respect of this hostile litigation, the investigation and subsequent legal proceedings occurred over some years, from around mid-2012 until mid-2014. Despite lawyers being retained, the applicant had personal involvement in the litigation as he was effectively the client.

13 In fact, as a professional executor, he was able to detect the irregularities that led to the Jamieson proceedings. The benefit to the estate in removing the co-executor, Mr Jamieson, a financial planner, is the removal of a 1% fee of approximately $100,000 per annum. There is now a fee of $27,000 per annum paid for financial planning services. The litigation against Mr Jamieson was compromised after he provided information about his financial position to the effect there were low prospects of recovery against him for any losses.

14 The benefit of the Percydale litigation is the removal of 'farm management fees' of $130,000 per annum. Those fees would have continued indefinitely. The conduct of, and settlement of the Percydale litigation was approved by the Court, and entered into after taking judicial advice. While the asset ultimately collected was small, the executor was not to know ahead of the litigation that would be the case. It was compromised after information was provided about the assets to the effect there were low prospects of recovery.

15 The administration of the estate took approximately four years, from probate being granted on 5 October 2010, until settlement in August 2014. In addition to the litigation, there was some complexity as during Phyllis' lifetime the applicant managed the deceased's real property. This included the deceased's former residential property. The deceased and his wife had moved into aged care. The residential property was initially leased and later sold.

16 The charitable trust is large and requires ongoing tax and accounting advice, management of assets so as to generate appropriate income and decisions about making charitable distributions.

17 The size of the trust generates active responsibilities. There is complex administration and the will charges the applicant with discretionary decision making in respect of the trust's charitable distributions. The applicant actively uses his acumen as an experienced solicitor.

18 The trust's charging clause should be assessed neutrally because the applicant cannot both charge and seek commission. To date, the applicant has not taken advantage of the charging clause. If he did in the future, he would seek permission from the Court or Attorney-General before doing so.[19]

19 The applicant has spent 570 hours of work since his retirement as a solicitor on 30 June 2012, being 10-12 hours per week, administering the trust. He has not been remunerated for that time.

20 The applicant's firm, Scanlan Carroll, did administration work in respect of the estate for which it was paid. This includes answering requests for documents and information about the administration of the Percydale assets from the law firm acting in that litigation, Wisewoulds. In addition to Wisewoulds, two other law firms were engaged. Moores Legal provided advice in relation to the establishment of the charitable trust and its tax exempt status. Rigby Cooke charged legal fees in administering Phyllis' estate.

21 It was submitted that the applicant's role as executor can be seen as being broadly in several different stages. The first being until May 2011 while the applicant was still a partner at his firm, but before litigation had commenced. During this period it was submitted the work undertaken in the administration of the estate was mainly of a personal nature. The second being from approximately May 2011 until June 2012, in which litigation had commenced but the applicant remained a partner at the firm. The third period spans from his retirement from practice and throughout the litigation.

22 The applicant received remuneration for the period he was a partner of the firm. He gave evidence that approximately $13,000 of his profit share was attributable to fees earned by the firm in representing him as executor of the estate. It was submitted that nonetheless he is entitled to some remuneration for his pains and troubles as executor during that time.

23 Upon his retirement, the applicant received a profit share for the time he was a partner prior to his retirement. No estimate was provided for the sum he received that was attributable to the work generated and fees earned by the firm in respect of representing him as executor for the estate. However, it was again submitted that the Court should take into account the work done as executor before his retirement, whilst avoiding any 'double-dipping'.

24 There was intense activity in the 2011-2014 period, much of which was due to the two proceedings, of which approximately two years was after his retirement. He is entitled to remuneration after his retirement taking into account because of the substantial burden upon him.

25 The division of the applicant's executorship into separate phases, was essentially used by counsel for the applicant as an analytical aid, rather than a submission that a different rate of commission should be awarded for the different phases. Indeed, counsel for the applicant was unable to find any authority for such a proposition, and did not submit that Court should do so.

26 The use of solicitors has alleviated the applicant's 'troubles' but not the pains. The 'pains and troubles' are largely in relation to the trust. So there could be a division between the trust and estate in terms of commission awarded.

27 Legal fees paid from estate funds amount to approximately $1,089,000. In addition to the legal fees, there has been approximately $657,522.11 paid by the estate for other expenses. Of these other expenses, approximately $360,000 has been paid by the estate for accounting services and portfolio management services. The total amount of lawyer and accountant fees incurred is approximately $1,449,000 (being $1,089,000 plus $360,000).

28 The applicant is not an accountant and uses the services of accountants to provide tax advice and accounting work. He does however take an active trustee role in making decisions, regularly checking financial information, emailing and speaking with the portfolio manager to make investment decisions about the portfolio.

29 As the will expressed a 'general charitable intention' and referred to an 'authorised charity', the Attorney-General was given notice of the application. As the 'protector of charity', where necessary the Attorney-General represents the beneficial interest in charitable trusts which, by their nature, are for the benefit of the public or a substantial part thereof. Where, as in this case, the trust is expressed in general terms rather than nominating a particular beneficiary, the Attorney-General is the proper representative of the beneficial interest in the trust.

30 The Attorney-General does not usually contest applications for executor or trustee's commission. There are legislative provisions that give the Court the discretion to award such commission. However, in certain circumstances, the Attorney-General is the appropriate contradictor.

31 The Attorney-General's submissions were on the application for commission as trustee, rather than the application for commission as executor. The Attorney-General does not contend that the applicant should not receive commission. Its submissions are directed to the proper consideration in assessing the amount of commission which the estate can reasonably be expected to bear in the circumstances.

32 The striking feature of the administration of the estate is the extent to which use has been made at the expense of the estate of legal and financial advisers. On the face of the affidavits:

(b) income to 31 December 2015 was $1,239,211.72;

(c) total legal fees charged to the estate as at 17 May 2016: $1,089,576.82; and

(d) other expenses (accountants, investment advisers etc.): $1,747,099.23.

33 The total amount expended in the administration of the estate through the use of professional advisers appears to be $2,836,676.05. This is equivalent to approximately 34.6% of the assets received by the executor. Total income from the estate from August 2010 to December 2015 was $2,100,103.42. Thus the amount spent on professional advisers exceeded the income by $736,572.63. The fact the executor has had this assistance should be taken into account when assessing the amount of commission.

34 The applicant's use of legal services falls into two categories. Firstly, services provided by his law firm directly related to the administration of the estate, together with some other services. Secondly, services provided in relation to the conduct of two legal proceedings.

35 Scanlan Carroll have billed the estate $342,631.29. This includes, during the course of the litigation, liaising with the other law firm and the executor 'about the ongoing conduct of the litigation'. Throughout the Jamieson proceeding, the applicant was a partner in Scanlan Carroll and remunerated as such.

36 The benefit to the estate as a result of the removal of Jamieson from his role as co-executor and/or investment adviser appears to be about $400,000.

37 The consequence to the estate of the termination of the agribusiness investment the subject of the Percydale proceeding is a net loss of $375,000.

38 Leaving out the reduction in value of the agribusiness asset, a notional benefit to the estate of $920,000 results. This exceeds the amount billed by the firm acting in the Jamieson and Percydale proceedings by about $200,000. This would be further reduced by the amount billed by Scanlan Carroll in the same period.

39 The applicant, at the expense of the trust, has expended in excess of $1.7 million in the use of professional services to manage the trust fund.

40 It is a question for the Court as to whether the pains and troubles deposed to by the applicant warrant total remuneration in excess of $300,000. He was formerly a solicitor but all legal work related to the execution of his duties as executor or trustee was carried out at the expense of the estate by other lawyers. He supervised that work in a general way. Financial advisers were engaged at the expense of the estate. The more onerous period of activity was between the death of Phyllis on 25 May 2011 and the final resolution of the Percydale proceeding on 30 July 2014. The process of getting in the estate assets, other than selling real property and some personal property, was the straight forward transfer of money and securities from one account to another on the advice of professionals. The activities of the trustee in relation to making distributions have not been particularly extensive or time consuming. The objects upon which the income of the fund is to be distributed are within a confined class not requiring extensive consultation of review of applications over a wide variety of objects.

41 Accordingly, the Attorney-General considered what commission the estate can reasonably bear in circumstances where the applicant is entitled to some allowance for pain and trouble. The burden should not be excessive. The following commission rates, lower than that proposed by the applicant, were put forward by the Attorney-General:

(a) if the applicant were allowed 1.5% on capital realisations of $8,222,842.80, he would receive $123,342.64. If he were allowed 2% on income, he would receive $36,887.66. A total amount would then be $160,230.30; or

(b) if the applicant were allowed 1% on $5,870,659.27 plus 0.5% of assets distributed in specie totalling $2,352,183.53 and 2% of income, the total would be $107,354.18.

42 Section 65 of the Administration and Probate Act 1958 (Vic) provides:

Executors' etc. commission

(1) 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.

In this section "executor" includes the executor of an executor becoming by representation the executor of the original estate.

(2) Despite subsection (1), the commission or percentage allowed by the Court in respect of a licensed trustee company must not exceed the commission or percentage that a licensed trustee company may charge under Chapter 5D of the Corporations Act.

43 Section 77 of the Trustee Act 1958 (Vic) provides:

Commission allowable to trustee of a settlement

It shall be lawful for the Court or an Associate Judge of the Court to allow out of the trust funds to the trustee of a settlement such commission or percentage not exceeding five per centum for his pains and trouble as is just and reasonable.

44 The definition of 'pains and troubles' offered by Vance, has been generally accepted:[20]

The expressions 'pains' and 'trouble' have been defined in the New Zealand case of Re Allan McLean dec., 'pains' as responsibility, anxiety and worry, and 'trouble' - as covering the work done.'[21]

45 The Court will consider the following factors in assessing executorial commission:

(a) the work and judgment involved in the realisation of assets and earning income;

(d) the amount of work done not reflected in financial terms;

(f) the size of the estate and its capacity to pay;

(g) the work of a non-professional character not undertaken by the applicant and performed by professionals; and

(h) executors' pains and troubles relative to the result.[22]

(i) whether there has been any litigation, or other conflict, necessary to the administration of the estate;[23] and

(j) whether there has been any delay in the administration of the estate - if so, 'such conduct may disentitle or reduce an executor's commission, such as no commission on certain assets after the date when distribution should have occurred.'[24]

47 The following principles are also established regarding the quantum of commission:

The Court will only grant commission for an executor's past conduct and not his or her future 'pains and troubles'.[25]

(b) executor's commission is not based on an hourly rate;[26]

(c) executor's commission is calculated on the value of assets at the time of realisation, not the time of death.[27] If the assets are not realised, but appropriated to a trust established by the will, then on the value of assets appropriated;[28] and

(d) recent authority indicates that the Barr-Smith Scale is outdated and excludes non-financial factors that may be relevant.[29] It should no longer be used as the basis for the calculation of executor's commission. In any event, the Court must 'form an overall assessment of what remuneration is just and reasonable rather than apply the Barr Smith scale'.[30]

48 If the estate has paid solicitors or other professionals to undertake work for the estate, then the executor cannot include that work in determining the executor's 'pains and troubles':

Where the corpus or income is got in and realised with the assistance of professional agents or solicitors, the Court may reduce the amount of commission as the estate should not pay twice for services rendered and performed and charged to the estate.[31]

The statement of applicant's 'pains and trouble' should exclude any reference to non-legal work, normally done by an executor personally, which has been entrusted to the estate solicitor or accountant, for whose services the estate has already paid. The estate cannot be expected to pay twice for the same services.

This point is watched by the Master and, in an estate of any size, or where payments to a solicitor appear to be higher than normal, or appear as a lump sum charge, he should and will usually request particulars of the solicitor's charges. He does this, not to consider or question the reasonableness of those charges, which are matters for the trustee to accept or question, but to safeguard the estate against a double burden, and also the added expense of paying, at professional rates, for non-professional routine work. [citation omitted] ... It is, therefore, advisable to anticipate this request by setting out in the accounts, if possible, the various headings in the solicitor's bill of costs.[32]

50 However, the Court may take into account the work of the executor in liaising with professionals, and 'making decisions in relation to the advice' given by them.[33]

51 The Court has power to order costs:[33]

The authorities concerning the costs in the administration of an estate are well known and conveniently set out in Hall v Carney (No 2). [citation omitted] Where probate litigation has been caused, or contributed to, by the way in which a testator made his or her testamentary intentions known, costs would usually be ordered to be paid out of the estate. If the litigation is in substance adversarial litigation, it is common for the court to apply the usual rule as to costs and make orders that one party pay the costs of the other and is not concerned about the indemnification from the estate. [citation omitted]

In respect of trustees' costs, trustees are entitled as of right to indemnity out of the trust for expenses properly incurred; [citation omitted] that is, all costs except to the extent that they are of an unreasonable amount or have been unreasonably incurred.[34]

52 Section 3.4.2 of the Legal Profession Act 2004 (Vic) ('LPA') (now repealed) provided:

3.4.2 Definitions

In this Part -

business day means a day other than a Saturday, a Sunday or a public holiday within the meaning of the Public Holidays Act 1993;

conditional costs agreement means a costs agreement that provides that the payment of some or all of the legal costs is conditional on the successful outcome of the matter to which those costs relate, as referred to in section 3.4.27, but does not include a costs agreement to the extent to which section 3.4.29(1) applies;

costs agreement means an agreement about the payment of legal costs;

costs review means a review of legal costs under Division 7;

itemised bill means a bill that specifies in detail how the legal costs are made up in a way that would allow them to be reviewed under Division 7;

litigious matter means a matter that involves, or is likely to involve, the issue of proceedings in a court or tribunal;

lump sum bill means a bill that describes the legal services to which it relates and specifies the total amount of the legal costs;

practitioner remuneration order means an order made under section 3.4.22;

scale of costs means a scale of costs of a court or tribunal of this jurisdiction;

sophisticated client means a client to whom, because of section 3.4.12(1)(c) or (d), disclosure under section 3.4.9 or 3.4.10(1) is not or was not required;

third party payer - see section 3.4.2A;

uplift fee means additional legal costs (excluding disbursements) payable under a costs agreement on the successful outcome of the matter to which the agreement relates.

3.4.19 On what basis are legal costs recoverable?

Subject to Division 2, legal costs are recoverable -

(a) under a costs agreement made in accordance with Division 5 or the corresponding provisions of a corresponding law; or

(b) if paragraph (a) does not apply, in accordance with an applicable practitioner remuneration order or scale of costs; or

(c) if neither paragraph (a) nor (b) applies, according to the fair and reasonable value of the legal services provided.

54 The Professional Conduct and Practice Rules 2005 applicable to solicitors provided as follows:

Receiving a Benefit under a Will or other Instrument

10.1 A practitioner who receives instructions from a client to draw a will appointing the practitioner or an associate of the practitioner an executor must inform the client in writing before the client signs the will -

10.1.1 of any entitlement of the practitioner, or the practitioner's firm or associate, to claim commission;

10.1.2 of the inclusion in the will of any provision entitling the practitioner, or the practitioner's firm or associate, to charge legal costs in relation to the administration of the estate, and;

10.1.3 if the practitioner or the practitioner's firm or associate has an entitlement to claim commission that the person could appoint as executor a person who might make no claim for commission.

55 In Szmulewicz v Recht, Habersberger J explained the 'point of rule 10.1 is that it is an attempt to ensure that a testator is given full information and advice by his solicitor about a clause in his will which potentially causes a conflict between the solicitor's fiduciary duty to his client and his personal interest'.[35] His Honour elaborated on this as follows:

a solicitor putting forward a will for a client to sign, which contains a clause such as the one in this case, must explain to the client all of the pros and cons of the inclusion of the clause, even if it was the client who suggested the clause, so that it is clear that the client has given his or her informed consent to a clause which otherwise would give rise to an objection on the ground of conflict between fiduciary duty and personal interest. The solicitor cannot assume that the client understands all of the ramifications of including the suggested clause, no matter how sophisticated or astute the client may be with respect to financial matters.[36]

I consider that an executor who is also solicitor for the estate and who is seeking to procure the beneficiaries' consent to charge an executors commission, at a bare minimum ought disclose the following, in order for that consent to be informed:

(a) The work that he has done to justify the commission. This should be done with particularity.

(b) If he is invoicing the estate for legal fees and disbursements he ought identify with particularity what constitutes the basis for same. Only then can a beneficiary accurately measure the 'pains and troubles' occasioned to the executor beyond the subject matter of those legal fees and disbursements.

(c) That the beneficiaries are entitled to have this Court assess his commission pursuant to s 65 of the Act. This needs to be explained fully.

(d) That it is desirable that the beneficiaries seek independent legal advice as to their position on this issue of consent. In many cases where the beneficiaries are unsophisticated people and the issues are complex he ought insist upon them receiving independent legal advice and ought not enter into any commission agreement until they have. [37]

57 The applicant did incur pains and troubles in administering the estate. In addition to the usual pains and troubles, the applicant received serious threats, and the Court accepts his evidence that they gave rise to 'substantial fear and upset' for him and his wife.[38] The Court also accepts the applicant's evidence that the Percydale and Jamieson litigation proceedings were each 'heavily contested and hard fought'.[39] The applicant has undertaken a very substantial amount of work administering the estate and trust since his retirement. His evidence that he has done 570 hours of work since retirement is also accepted.

58 On the other hand, there were a number of factors which cause the Court to consider what, if any commission, should be given to the applicant in his capacity as executor and trustee.

59 Firstly, whether the estate can reasonably bear a payment of commission.

60 The estate assets are valued at approximately $8,250,000. The estate has already been burdened with approximately $1.1 million in legal fees.[40]

61 In addition to the legal fees, the estate has been burdened with significant other professional fees and expenses. Even accepting the applicant's calculations, these amount to approximately $650,000. The total of legal and other fees and expenses together is approximately $1.75 million - on the applicant's own calculations.

62 The executor has not been timely in making donations from the perpetual trust for which he was responsible. In October 2010, probate was granted. However, there were no distributions of donations until 2013, when there was a donation of $250,000.[41] There were no distributions made in 2014, and in 2015 the sum of $75,000 was donated.[42] Following the first two hearing dates of this application, a further $437,000 was donated.[43] The applicant deposed:

Until the estate was finalised, in particular until litigation was concluded, I was uncertain as to what was available from the cash flow to attribute to donations. The cash flow was being used to pay for legal costs and other expenses. I was also uncertain about the burden of ongoing costs and the burden of executor's commission. Now that all of those matters have been resolved, and I have obtained advice of counsel, my intention is to donate as much of the income as is reasonably possible.[44]

63 It is observed that not all matters have resolved because at the time of the affidavit, the executor's commission had not been determined.

64 The applicant's contention that, on his own evidence, income outweighed fees must be countered with the fact that the legal costs and other expenses have meant that the trust has been diminished in doing what it was established to do - make charitable donations for the benefit of the people of Victoria in respect of the provision of medical services or medical research and development.

65 Secondly, the executor has already been remunerated for his pains and troubles. He received benefit as a partner of Scanlan Carroll. He also received a retirement benefit which took into account past remuneration of the firm, and this includes the fees charged in respect of the estate. There was evidence that the amount of $13,000 of his profit share could be attributed to the fees charged to the estate. However, there was no evidence as to what portion of his retirement benefit could be attributed to the estate.[45] The retirement benefit was calculated on a client evaluation formula based on the preceding three years' remuneration.[46]

66 The professional fees charged by Scanlan Carroll seem to be very high. They appear, on the Court's calculations, to be $269,290.99 for obtaining probate and administering the estate.[47] The applicant exhibits a schedule indicating professional fees of $290,290.99 for the same.[48] However, this appears to also include legal costs. Even using the Court's lower calculation of $269,290.99, the professional fees for obtaining probate and administering the estate appear very high. These fees were invoiced over a period during and post the applicant's partnership with Scanlan Carroll.

67 In addition to the fees above, Scanlan Carroll also charged professional fees of $52,263.90 for the 'preparation of accounts', legal costs of $2,709.55 for the conveyance of the Elwood property, and $1,462,20 for establishing the corporate trustee. The professional fees of $52,263.90 for the preparation of accounts appears very high. These fees were invoiced after the applicant's retirement from Scanlan Carroll.

68 The invoices exhibited containing Scanlan Carroll invoices are lump sum bills, as defined by s 3.4.2 of the LPA. Given that, it is impossible to determine whether the fees are reasonable.

69 Of concern is that the applicant deposes that the primary Scanlan Carroll solicitor working on the file, Sharelle Staff, 'charged her standard rate during the administration' but there is no evidence as to why Scanlan Carroll was entitled to charge on that basis, rather than the applicable Court scale at the time the work was done.[49] In comparison, in her affidavit supporting the application for legal costs of this application to be paid out of the estate and trust, Ms Staff deposes to their being a costs agreement, although she does not exhibit it.[50]

70 Section 3.4.19 of the LPA entitles a law practice to charge in accordance with a costs agreement, or, if there is no such agreement, then the applicable practitioner remuneration order or scale of costs, or, if there is no such order or scale, according to the fair and reasonable value of the legal services provided.

71 If there was no costs agreement in respect of the application for probate and administration of the estate, then Scanlan Carroll is limited to charging in accordance with the applicable practitioner remuneration order or scale of costs, being Appendix 3-A to the Supreme Court (Administration and Probate) Rules 2004 (for obtaining the grant of probate) and the Practitioner Remuneration Order ('PRO') for the general administration of the estate. It is impossible to determine whether the lump sum fees charged by Scanlan Carroll are less than they would have been if quantified with the applicable scales of costs. Certainly, in a gross estate of, say, $8.4 million, Scanlan Carroll would, prima facie, only be entitled to charge $6,525 for obtaining the grant of probate, plus professional fees referrable to the general administration of the estate based on the PRO.

72 Importantly, the applicant executor could not satisfy himself, on the basis of the lump sum bills rendered by Scanlan Carroll, that the fees were properly chargeable to the estate and reasonable in amount. He should have obtained itemised bills from Scanlan Carroll.

73 In addition to the legal fees by Scanlan Carroll, there were significant other fees. For instance, Wisewoulds charged legal costs of $720,163.48 which included professional fees of $296,870.20. Again, the invoices exhibited are lump sum invoices. There is no costs agreement exhibited. It is impossible for the applicant executor to determine, on the basis of the lump sum bills, whether the fees were properly chargeable to the estate and reasonable in amount. He should have obtained itemised bills from Wisewoulds.

74 One question that arises is whether orders should be made for the invoices from Scanlan Carroll and Wisewoulds to be taxed. However, given the years that have elapsed since many of the invoices were issued, and the further expense that would be incurred, the Court will not order those costs to be taxed.

75 Thirdly, the executor has actively used advisers, which does not disentitle him to commission, but is has significantly eased the burden of administering the estate. Further, in terms of managing investments, he manages his own investment portfolio and so already has an active interest in investments anyway.[51]

76 The Attorney-General's submission that the activities of the trustee in relation to making distributions have not been particularly extensive or time consuming is accepted. Such submissions are consistent with the evidence as to the donations distributed to date (discussed above). This is not to ignore the applicant's evidence that some work is involved, however it does not appear to have been extensive or time consuming to date.[52]

77 The Court observes, although it is not determinative, the benefit to the estate of the Percydale litigation (conducted on its behalf by Wisewoulds) appears to be outweighed by the legal fees. It is no answer to this issue to say that the litigation was commenced and concluded with judicial approval. Judicial approval did not run to the amount of legal fees to be incurred.[53] That was the responsibility of the executor to oversee. Nevertheless, taking a long term view, the Court accepts that there are benefits to the trust in that the ongoing fees in respect of both the Percydale investment and Mr Jamieson are no longer being incurred.

78 Weighing up all the factors above, the Court has decided that the applicant should be given commission for his pains and troubles based on the significant amount of work he has undertaken since his retirement from Scanlan Carroll, the stress of the Jamieson and Percydale litigation, and, significantly, the serious threats made by post to him and reported to the police.

79 The appropriate quantum of commission is 1.5% on corpus, rounded down to $120,000, plus 0.5% on income, rounded up to $10,000.[54] This brings the total commission to $130,000.

80 On 19 April 2016, the applicant made submissions seeking payment of his costs of this application out of the estate. Costs were sought on an indemnity basis to be paid out of the estate and trust.

81 Ms Staff deposed by way of affidavit sworn 17 May 2016 that the applicant's legal costs to date of the application for executor's commission were $83,329.59. The invoices constituting 'Exhibit SS-1' to that affidavit are not itemised. In addition, since then, there have been two further hearing dates, and further affidavit material filed.

82 The applicant will be given a further opportunity to make submissions on costs. The Attorney-General will also be given that opportunity.

83 The Court will award the applicant the following commission:

84 It will hear submissions on the appropriate form of orders and costs.

[1] Affidavit of James Francis Carroll sworn 16 November 2015 [9] ('the applicant's first affidavit').

[2] Affidavit of James Francis Carroll sworn 19 April 2016 [3] ('the applicant's second affidavit').

[3] Exhibit 'JFC-12' to the affidavit of James Francis Carroll sworn 17 May 2016 ('the applicant's third affidavit').

[4] Exhibit 4, Summary of Income and Expenditure of the Estate of Donald Ratcliffe Macleod (Estate) and the Donald & Phyllis Macleod Trust Fund.

[5] The applicant's first affidavit [5c].

[6] Transcript of proceedings, IMO the Will and Estate of Donald Ratcliffe Macleod, Application by James Francis Carroll (Supreme Court of Victoria, S PRB 2010 12972, Ierodiaconou AsJ, 19 April 2016, 22 ('Transcript'); applicant's third affidavit [31-32].

[7] The applicant's third affidavit31-32].