Analysis
The first defendant was an executor and trustee of the will dated 28 June 2001 (the will) of Gladys Dulcie Townsend (the deceased), who died on 1 July 2003 leaving property both in England and Wales and in Dominica. Probate of the will was granted to the first defendant and a solicitor out of the Winchester Probate Registry on 2 December 2004. The claimant, who was a residuary beneficiary under the will, brought a claim seeking the removal and replacement of the executors in December 2015. An order removing the first defendant by consent was made on 2 June 2016. The first defendant, who was not a solicitor or accountant, sought to charge the estate for the period during which she acted as an executor for her time and work at a monthly fee of £300, totalling in the aggregate a sum of £43,350. The will contained a professional charging clause entitling:
‘… any of my Trustees who shall be engaged in any profession or business [to] charge and be paid… all usual professional and other fees… for work or business…done or time spent by him… in connection with the administration of my estate… including work or business outside during the 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 first defendant claimed to be engaged in several businesses but provided very little detail about them. Deputy Master Lloyd concluded at a hearing on 28 August 2019 that he was not satisfied that her activities in administering the estate were done in the course of those businesses and granted a declaration that she was not entitled to charge the estate. The first defendant appealed.
Held (dismissing the appeal):
The will contained a common, standard form charging clause and it was accepted that this was not confined to an executor who was in a profession such as a solicitor or accountant, but extended to persons engaged in a profession or business even though that profession or business might not pertain to trust administration. The words ‘any profession or business’ were very wide and potentially capable of applying to a person who was engaged in any form of profession or business, even if the scope of that profession or business had no connection with the administration of estates.
However, professional charging clauses should be restrictively construed, and the words ‘usual professional and other fees’ were key to the meaning of the clause. These required there to be a link between the scope of the profession or business in question and the work that the executor has carried out in connection with the administration of the estate and in respect of which they are seeking to charge. Thus, the business had to have some relevance to the administration of an estate and the time spent, for which it was sought to charge, should have been part and parcel of that business.
This conclusion was consistent with earlier authority, notably the decision of Buckley J in Clarkson v Robinson [1900]. Having regard to the natural meaning of the words used in the will, to the need to construe the clause restrictively and to common sense, an executor or trustee could rely on the clause to charge for work done or time spent in the administration of the estate only if that work fell within the scope of their profession or business; that is to say if it was work of a type which would attract or incur their usual professional fees. The deputy master was justified in concluding, on the basis of the extremely limited information provided about the businesses in question and the work carried out on behalf of the estate, that the first defendant was not entitled to charge the estate for her time.
JUDGMENT DAVID REES QC: [1] The general rule is that the role of a trustee or executor is a gratuitous one (Lewin on Trusts 20th ed 2020 para 20-001). However, there are a number of well-recognised exceptions to this principle, and a trustee is entitled to payment for their services if such remuneration is permitted …Continue reading "Da Silva v Heselton & ors [2022] WTLR 67"