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VIC Executor of Will - Is the Estate Liable for Capped Fees?

Discussion in 'Wills and Estate Planning Law Forum' started by are you sure, 23 October 2015.

  1. are you sure

    are you sure Member

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    I am not sure if I am getting the right information in a legal matter I am currently involved in as an executor of will of my late parents' estate. The estate is challenged by my sister who was left out of my parents' will.

    I want to run it's full course, being a date at trial and tried to mediate with her but she is being unrealistic so I had no choice.

    My question is: if the judge says to my solicitor's firm that costs have to be capped... can the firm still pursue costs that are over the capped fee. For example, if the capped fee is at $50,000 and the firm's costs are at $80,000, the outstanding is $30,000.

    Is the estate liable or is it what the court caps the fee at? If anyone can clarify this for me, I would appreciate it a lot.
     
  2. winston wolf

    winston wolf Well-Known Member

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    Hi, I'm not confident in the answer but I will give it a shot. (Others are welcome to educate me)

    I know this is an option in NSW but unsure if the judge has the option in Vic. Where did you hear about it?

    It is only used when the judge considers the legal council have been to blame for extraordinary costs. For example, large and many unnecessary affidavits.

    It is so rare that its almost unheard of. I think I have seen it 2 or 3 times in the family provision claims I've read in the NSWSC over 7 years(300+).

    My understanding is the lawyers are responsible for the costs over the cap; the cap being their final bill.
    The court can specify that the executor pay a larger share of costs if they are seen to be to blame for generating unnecessary costs. This is much more likely if they are also a beneficiary.
     
  3. are you sure

    are you sure Member

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    Thanks Winston Wolf. One thing for sure is that I, as the executor, have tried in vain not to run up costs for the estate. It's the opposition being my sister's legal representatives (law firm) that are wasting away the estate's value by arguing the property's value.

    I have had a sworn valuator come to the property and valuated the property. They weren't happy with me appointing a valuator, so they organized there own valuator and there valuation came in 15k less than my valuator.

    They had the valuation report in their hands 2 days prior to a second directions hearing, and at the hearing, they still argued that the property was worth a 950k when the the valuation report I had was 775k. Theirs was 760k.

    The trial judge replied that they cannot presume or guess the value off the property and said it's easy to get a sworn valuation. They didn't tell the trial judge that they have had a valuation report performed by a sworn valuator.

    I went to mediation trying to be fair and reasonable but they presented themselves with two solicitors and one barrister. Did they need two solicitors too take notes? No, I would think and my barrister and solicitor and the mediator themselves had a few words to themselves about it. At mediation, nothing was resolved. I have even tried to come to some agreement with her by approaching her myself by going to her place but that didn't work. She never cared to much about my parents, she went to the solicitors the day after we lay my dear mother to rest. By the way, she didn't even come to her burial. Only attended church on the day.

    I. myself, had my mum stay with me at my home off a night and she would be at her home off a day. It was easy for us because we lived 2 streets away from each other that being 600 metres in distance from one another since my dear dad passed away in 2009. She passed away this year. I was told that i can't claim my father's funeral expenses either cause his estate was passed on to my mother. A cost of 40k. Is it also true that I can claim my expenditures on the upkeep of their home?

    Going back on the affidavits...She has changed hers 3 times. The last one they handed it in 10 minutes before mediation. How was i supposed to defend the estate without having the time to read it?
    Are they allowed to do that?

    There are a few questions in my reply Winston Wolf if you have any answers to them, it would be appreciated.

    I've made a appointment with another law firm for a second opinion in the coming week and to see if my solicitor is up to speed with everything.
     
  4. winston wolf

    winston wolf Well-Known Member

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    Hi AYS

    The answers to some of the questions from you last post depend things such as, is there cash in the estate to pay bills? Does the will name other beneficiaries or are you the only one? Is the home left to you or the proceeds of the sale etc.?

    Statistics show that the plaintiffs legal cost are often higher than defendants(not their money). The best you can hope for is the judge takes this into account when deciding costs.

    I don't know about changing the affidavits. You may be able to raise this in court to discredit their honesty.

    Don't get too caught up in who was a good child and who did what. The court doesn't care much about that. They are more interested in whether your sister has enough money for her maintenance V you.
     
  5. are you sure

    are you sure Member

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    I am the sole beneficiary and there is no money in the estates accounts.
    Thanks again, Winston Wolf
     

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