Court review of costs  and commission charged  by executors

E1  Should the Supreme Court have the power to review amounts charged by executors? If so—

(a)  should  the scope of the power be limited to commission, or should  it extend to disbursements, fees and any other amounts?

(b) should  the Court be able  to conduct a review on its own initiative or should  it be able  to do so only on the application of a person interested in the estate?

(c)  should  there be an exemption from  review if the will-maker was advised to seek independent advice or the legal practitioner who prepared the will complied with rule 10 of the Professional Conduct and Practice Rules 2005?

(d) should  there be a time limit within which an application for review should  be made?

(e)  should  the Court be able  to order costs against the applicant if the application is frivolous, vexatious or has no prospect of success?

(f)  should  the Court be required in normal circumstances to order the executor to pay the costs of the application if the amount is reduced by more than 10 per  cent?

(g) should  the same provisions apply to review of amounts charged by administrators, individual trustees and State Trustees?


Special  rules for legal  practitioners who act as executors and also carry out  legal  work  on behalf of the  estate

E2    Should legal practitioner executors be required to instruct another law practice to act in relation to an estate?

E3    How could existing rules for ensuring that will-makers are  fully informed about the possible  costs to the estate of appointing a legal practitioner executor be improved? Should a will that appoints a legal practitioner executor have to be witnessed by an independent witness?

E4    Should rule 10 of the Professional Conduct and Practice Rules 2005 be incorporated into the Wills Act 1997 (Vic)?

E5    Should legal practitioner executors be required to disclose to beneficiaries the basis on which they charge the estate for their executorial and legal work? If so, should the requirement be set out in legislation or in professional rules?

E6    Should the common law concerning the minimum information that should  be disclosed to beneficiaries when they are  being asked to consent to the payment of commission be set out in legislation?

E7    Should legal practitioner executors be entitled to charge an hourly rate for executorial services, rather than being able  to claim a percentage of the estate or
its income, for commission? Should Victoria adopt the model  provision proposed by the National Committee for Uniform Succession Laws?


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Date Published: 
Wednesday, January 30, 2013 - 13:30

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