Jacqueline da Silva v Sandra Heselton & Ors.

A testamentary charging clause permitting a trustee engaged in any profession or business to charge usual professional or other fees does not create a general entitlement to payment for all estate administration work. The work or time must be of a type falling within the scope of that profession or business and attracting the trustee’s usual fee. The profession or business need not itself concern estate administration. Work outside its ordinary course may still qualify, but work outside its scope does not. A statutory charging provision for professional trustees confirms the distinction between having a profession and acting in the course of that profession.

This second appeal concerned whether Sandra Heselton, a former executor of the estate of Gladys Townsend, could charge the estate a monthly administration fee under a charging clause in the will. Jacqueline da Silva, the residuary beneficiary, challenged the deduction of those sums from rental income.

The Deputy Master held that the clause permitted charges only for work done in the course of the executor’s profession or business and found that this had not been established. The Deputy High Court Judge dismissed Mrs Heselton’s appeal in [2021] EWHC 3079 (Ch). The central issues before the Court of Appeal were the proper construction of the clause and whether the matter should be remitted for further factual findings.

1. Disposition. Nugee LJ, with Lewis and Arnold LJJ agreeing, dismissed the appeal.
2. Construction. The words permitting a trustee engaged in any profession or business to charge usual professional or other fees do not require the profession or business itself to involve estate administration. A builder may charge usual building fees for estate building work, and a surveyor or art expert may charge usual fees for valuation or art-related services provided to the estate.
3. The words usual professional or other fees govern both the amount and the nature of the charge. The work or time must fall within the scope or type of work carried out in the trustee’s profession or business and be work for which a usual fee would arise. The reference to time spent does not confer a general hourly rate for estate administration. It does not assist a trader or professional who has no usual fee for that type of work. The phrase in connection with the administration of the estate is sufficiently broad to include estate-related work such as preparing an asset for sale.
4. The provision concerning work outside the ordinary course permits charging for work within the profession or business even if it is outside the trustee’s usual practice. The further provision concerning work which could have been done personally by a trustee was intended to remove the restriction identified in Harbin v Darby and re Chapple. It permits a solicitor or similar professional, whose practice includes trust or estate administration, to charge for work which a lay trustee could perform. It does not permit a person whose profession or business has no such scope to charge for unrelated administrative work. re Fish was consistent with that construction.
5. The comparison with section 28 of the Trustee Act 2000, applied to executors by section 35, supported the same distinction. The court reserved the precise position of employees, while indicating that an employee might not have usual fees for work or time spent.
6. The Deputy Master and Deputy Judge had applied materially the same test. Mrs Heselton had not established that her estate activities were undertaken in the course of a business, and that conclusion was open on the limited evidence. No remittal was required.

1. Court of Appeal (Civil Division). The second appeal was dismissed.
2. High Court of Justice, Chancery Division. The Deputy High Court Judge dismissed Mrs Heselton’s appeal in [2021] EWHC 3079 (Ch).
3. Deputy Master. The original application was allowed in substance: Mrs Heselton was held not entitled to charge the estate for her time as executor.