Last month, the Supreme Court of Appeal (‘the SCA’) adjudicated whether the executor of a deceased estate, being an attorney acting in a professional capacity on behalf of the deceased in litigation proceedings, was entitled to remuneration following the Taxing Master’s decision to disallow the payment of legal fees.
Sabdia N.O v Soma centred around the estate of the late Dr Sabdia, who initiated review proceedings against Mr Soma, the owner of an immovable property in Pretoria, in the Land Claims Court before his death.
Following Dr Sabdia’s death in late 2013, his sons, Riaz and Shiraz Sabdia, were appointed as executors of his estate and thus substituted as litigants in the matter before the Land Claims Court. Mr Soma subsequently brought an eviction application against the estate. The executors, represented by Mothle Jooma Sabdia Incorporated (‘MJS’), successfully opposed the application, which was dismissed with punitive costs on an attorney-client scale.
When the executors requested the taxation of their legal fees in September 2019, the Taxing Master of the High Court concluded that, with the exception of out-of-pocket expenses, the estate was not entitled to recover the costs awarded by the court in terms of the Administration of Estates Act (‘the Act’). In this instance, the Taxing Master reasoned that neither MJS nor Shiraz Sabdia, an attorney practising at MJS and acting in his professional capacity on behalf of the estate in a lawsuit, were entitled to remuneration for legal services rendered, despite co-executor approval. Consequently, the Taxing Master disallowed the payment of R465 265.00.
Shortly thereafter, the executors challenged the Taxing Master’s determination in the High Court. Crucially, they contended that Dr Sabdia’s will expressly permitted them to recover professional fees for legal services rendered. The High Court disagreed, dismissing the executors’ review with costs in late 2022. The court a quo held that section 51(1)(b) of the Act entitles executors to the payment of fees associated with the administration of the deceased estate. Accordingly, they were not entitled to recover the punitive costs awarded against Mr Soma.
On appeal, the SCA closely examined the meaning and scope of section 51(1) of the Act. It found that the provision creates ‘two distinct legislative frameworks’, which the High Court failed to recognise. Section 51(1)(a) enables a testator to expressly determine an executor’s remuneration, which includes the payment of fees earned by an executor who renders professional services to the estate. If remuneration is not fixed, section 51(1)(b) provides that the payment of fees must be evaluated in line with the prescribed tariff and taxed by the Taxing Master.
In this case, the fee structure under section 51(1)(a) of the Act applies as the executors’ remuneration was fixed by Dr Sabdia in his will. Noting that the High Court overlooked the remuneration clause in the deceased’s will, the SCA held that the payment structure specified by the testator must take precedence over the one prescribed by statute. Undoubtedly, Dr Sabdia intended for the executors to be compensated for their professional services. To that end, the SCA remarked that the recovery of legal fees – pursuant to an executor acting in a professional capacity – does not conflict with the fiduciary duties of an executor.
The SCA set aside the High Court’s ruling and ordered the Taxing Master to re-enrol the taxation – after notifying all parties – and tax the bill of costs on an attorney-client scale.
At STBB, our trusted estate planning experts have the knowledge and experience to handle all estate-related matters. For expert legal assistance with the administration of a deceased estate, contact our estate planning attorneys at estates@stbb.co.za.
