94.These sections relate to professional charging clauses and the reimbursement of expenses incurred by trustees.  The provisions of the Act will govern the remuneration of “professional” trustees in two ways: first, by setting down rules of construction for express professional charging clauses in trust instruments; and secondly, by providing for the remuneration of certain trustees when there is no express professional charging clause in the trust instrument.  The new provisions will, in general terms, apply to all services provided after Part V comes into force irrespective of the date of creation of the trust (see section 33 below).  The creation of an implied professional charging provision is likely to be of the greatest benefit to old trusts, informally created trusts and trusts arising on intestacy whilst the new rules of construction will benefit all professional trustees.
95.The general rule under the present law is that trustees should not be paid for acting as such.  This rule is founded on the principles that trustees are not allowed to derive any benefit from trust property and that to allow them to be paid might give rise to conflicts of interest and duty.   Despite the general rule, the present law does permit trustees to be remunerated in certain circumstances.  The three most significant of these are where the trust instrument so provides; where payment is authorised by statute (for example, Trustee Act 1925 section 42, Judicial Trustee Act 1895 section 1(5); Public Trustee Act 1906 sections 4(3) and 9) and when ordered by the court under its inherent jurisdiction to secure the good administration of trusts.   Modern trust instruments will almost invariably contain an express professional charging clause.  The absence of such a clause would make it unlikely that a professional trustee would accept office in relation to the trust but would not prevent the trustees delegating administrative functions to the professional as an agent.  However, the mere presence of an express charging clause may not itself be sufficient to reward a professional trustee properly. First, such clauses are strictly construed against the professional trustee.  Thus, unless the trust instrument provides to the contrary (as modern trust instruments will usually do) the professional trustee with the benefit of a charging clause will only be able to be paid for services which could not have been provided by a lay trustee.  Second, remuneration under a professional charging clause is in some cases regarded as a gift or legacy rather than an expense of the administration.
Commentary on Sections Part V: Remuneration