Wakilii

Kaplan and Another v Leibbrandt and Another (Civil Case No. 82 of 1941 consolidated with Civil Case .No. 84' of 1941,)

East African Court of Appeal · Kaplan and Another v Leibbrandt and Another (Civil Case No. 82 of 1941 consolidated with Civil Case .No. 84' of 1941,) [1942] EACA 9 (1 January 1942) · 1942 Application Partly Allowed AI-generated summary ↓ Download Pin to watchlist Add to matter
Jurisdiction
Uganda
Case Type
Application to review the Registrar's taxation of bills of costs in a probate matter
Decision
Matter remitted to Registrar for re-taxation having regard to the court's interpretation of the will clause

Observed later treatment

No later-treatment classification is recorded for this judgment.

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Holding

A solicitor trustee acting for himself and a co-trustee cannot charge profit costs for trust administration out of court absent an express power in the trust instrument. The will clause authorising the trustee to charge for acts which a trustee could have done personally was sufficiently wide to permit charges for non-professional work properly incurred, not merely professional costs. The matter was remitted to the Registrar for re-taxation on this basis.

Outcome

Matter remitted to Registrar for re-taxation having regard to the court's interpretation of the will clause

Facts

The executors and trustees of the estate of John Leibbrandt, deceased, included L. Kaplan, a solicitor. Two firms of advocates, Ralston & Kaplan and Kaplan & Stratton, filed bills of costs for work done in administering the estate. The Registrar disallowed certain items on the ground that they dealt with work between co-executors and because the will gave Mr. Kaplan a legacy of £100 for proving the will. The will contained a clause (Clause 5) stating that any trustee being a solicitor may charge professional or other charges for business done in connection with the trusts, including acts which a trustee could have done personally. The applicant firms sought to review the Registrar's decision.

Issues

  1. Whether a solicitor trustee can charge profit costs for administration of a trust estate out of court in the absence of a power to charge contained in the instrument creating the trust.
  2. Whether the clause in the testator's will authorised the solicitor trustee to charge for non-professional work which a trustee could have done personally.

Orders

  • Matter referred back to the learned Registrar in respect of the disallowed items for re-taxation.
  • Non-professional charges properly incurred may be allowed.
  • Each party to have costs of application out of the estate.

Rules and key headnotes

Succession & Estates — Solicitor Trustees — Entitlement to Charge Costs — Absence of Express Power
In the absence of a power to charge contained in the instrument creating the trust, a solicitor trustee acting for himself and a co-trustee cannot charge any profit costs for the administration of the trust estate out of court.
Succession & Estates — Solicitor Trustees — Charging Clauses — Interpretation
A clause in a will authorising a solicitor trustee to charge for acts which a trustee could have done personally is sufficiently wide to permit charges for non-professional work properly incurred, not merely professional costs.
Succession & Estates — Solicitor Trustees — Charging Clauses — Drafting Propriety
A solicitor ought not to insert in its entirety into a will drawn by himself a clause entitling him as trustee to charge for non-professional work unless the testator has expressly instructed him to insert those very words, and the court will watch very jealously the conduct of a solicitor trustee under such a clause.
Succession & Estates — Solicitor Trustees — Legacy and Charging Clause — Compatibility
The fact that a will gives a solicitor trustee a legacy for proving the will does not preclude him from also charging for his trouble and professional costs under a separate charging clause that applies to any trustee who is a solicitor.

Legislation cited (1)

  • Rules of Court (Rule 2 of 1916)

Cases cited (5)

  • Lincoln v Windsor (68 ER 456)
  • In re Fish, Bennett v Bennett [1893] 2 Ch 413
  • Clarkson v Robinson [1900] 2 Ch 722
  • Chalinder v Herington [1907] 1 Ch 58
  • In re Chapple, Newton v Chapman (1884) 27 Ch D 584

Full judgment

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The original judgment as reported. Read the original PDF before relying on any passage.

Kaplan and Another v Leibbrandt and Another (Civil Case No. 82 of 1941 consolidated with Civil Case .No. 84' of 1941,) [1942] EACA 9 (1 January 1942)
Source: this page presents Wakilii’s issue analysis and metadata for a publicly reported Ugandan judgment. Any AI-generated summary is marked as such. Judgment text is sourced from the Uganda Legal Information Institute (ulii.org). Wakilii is not affiliated with ULII.