Trustee Charging Clauses: Can the Executor of a Will charge fees from the estate of a deceased?

Introduction

If a professional is appointed as the executor or trustee of a Will, they will want to include a charging clause. That charging clause should enable the professional to charge fees for their services from the estate. However, what if their profession does not qualify them to undertake the work? Much depends on the wording of the charging clause.

What is the scope of a charging clause?

In the recent case of Da Silva v Heselton [2021] EWHC 3079 (Ch), the Will in question contained a rather broad charging clause, which stated that:-

‘any of my Trustees who shall be engaged in any profession or business to charge and be paid … all usual professional and other fees and to retain and brokerage or commission for work or business introduced, transacted or done or time spent by him or his firm in connection with the administration of my estate or the trust powers or provisions of this Will or any codicil hereto including work or business outside the ordinary course of his profession and work or business which he could or should have done personally had he not been in any profession or business’.

The executor (defendant) sought to charge the estate for fees incurred while administering the estate, even though the business she was engaged in was unrelated.  The question therefore was whether the executor could rely on the charging clause to charge for business unrelated to the administration of the estate.

The outcome

The defendant’s appeal to be allowed her fees was dismissed.

It was held by Deputy Judge David Rees QC that the words of the clause did not entitle an executor or trustee to charge for work that falls out of the scope of their business or profession.  The Defendant asserted she had many different professional undertakings, but none of them involved the administration of estates. As such the fees she claimed were not her ‘usual professional and other fees’.

This case is a helpful demonstration that for an executor or trustee to charge fees from the estate, there must be a close connection between the business that the executor or trustee is carrying out, and the administration of the estate itself.  It also illustrates the restrictive interpretation of charging clauses, that is that if it does not clearly fall within the scope of the clause, then it should be considered to fall outside it.