Starke v James - [2009] SASC 40

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
STARKE v JAMES
[2009] SASC 40
Reasons of Judge Lunn a Master of the Supreme Court
23 February 2009
SUCCESSION - WILLS, PROBATE AND ADMINISTRATION
Application by executor/solicitor for remuneration under s 70 Administration & Probate Act - no charging clause in will - held order for remuneration not subject to special circumstances - order made for remuneration which is to be the equivalent of legal costs on Supreme Court scale for the work properly done by the executor and which is to be fixed by the equivalent of an adjudication of those costs.

STARKE v JAMES
[2009] SASC 40
Reasons on applications for commission and costs.

JUDGE LUNN: Kyriakos Lycourinos (“Mr Lycourinos”) died on 17 December 2004. By his will he left a house property at Goodwood to his wife, Eleni Lycourinos (Mrs Lycourinos) for life, with the remainder to her (but not his) son, Christos Chryssicopoulos (“Christos”).
Mrs Lycourinos died on 2 July 2006. By her will she left her estate, including what she had inherited from Mr Lycourinos, to Christos, although some question was raised whether there was a partial intestacy.
The plaintiff, who is a lawyer practising in Adelaide, was named as an executor in the wills of each of Mr and Mrs Lycourinos. On 4 December 2007 and 26 March 2008 respectively he alone obtained grants of Probate in their estates. He used his legal firm of Starke Lawyers to carry out the administration of both estates. (Although his legal practice is carried on through a company, D A Starke Pty Ltd, it was accepted by all parties that no distinction was to be drawn between the plaintiff and that company for the purposes of the present applications). The wills of each of Mr and Mrs Lycourinos, which were prepared by Mr Starke on their instructions, did not contain a clause authorising him to charge the estates for legal work done on their behalf.
Christos died on 28 August 2007. As far as it is known his only surviving next of kin was the defendant, Helen James, his daughter. The original of his will cannot be found, but there is a copy dated 29 March 1988 which shows him leaving his estate to the defendant, although her name had been erased out from it. No administration has ever been granted to anyone over his estate.
On 23 June 2008 the defendant instituted action 856/08 in this Court seeking a declaration that she was the universal beneficiary of Christos under his will dated 29 March 1988, or alternatively, that she was his universal statutory beneficiary under s 72G of the Administration of Probate Act 1919 (“the Act”). On 8 August 2008 the plaintiff in this action and another solicitor, Arthur Drikas, who was the executor named in the alleged will of Christos, were joined as defendants to that action. Mr Drikas has elected to take no part in the proceedings. No judgment has been entered in this action, 856/08,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Starke v James

Details

AGLC: Starke v James [2009] SASC 40
Case: [2009] SASC 40
Decision Date: 23 February 2009

CaseChat Overview and Summary

Starke v James involved a dispute regarding the remuneration of an executor under the Administration & Probate Act. The executor and solicitor applied for remuneration, despite the absence of a charging clause in the will. The court had to decide whether such an order could be made without special circumstances and, if so, how the remuneration should be calculated.

The legal issues before the court were whether the executor was entitled to remuneration without a charging clause in the will and, if so, how the amount should be determined. The court examined the statutory provisions of the Administration & Probate Act and considered whether the absence of a charging clause precluded an order for remuneration.

The court found that an order for remuneration could be made even in the absence of a charging clause, provided that special circumstances were not required. It was determined that the remuneration should be equivalent to the legal costs on the Supreme Court scale for the work properly done by the executor. This amount was to be fixed by an adjudication of those costs, mirroring the process for determining legal costs. Consequently, the court made an order for remuneration to be calculated in this manner.

The court's final order was that the executor's remuneration would be determined by the equivalent of an adjudication of legal costs on the Supreme Court scale for the work properly done, without the need for special circumstances.

Orders