96.Section 28 introduces the new rules of construction of express professional charging clauses in trust instruments.  Section 28(1) provides that the new rules will apply in favour of trust corporations and trustees acting in a professional capacity. Subsection (5) explains that to satisfy the condition that a trustee (other than a trust corporation) must be acting in a professional capacity, there must be a close nexus between the profession or business in the course of which the trustee acts and the services which he or she provides as trustee.
97.The new rules for the interpretation of professional charging clauses are set out in sections 28(2), and (4). These new rules will apply in relation to trusts whenever created provided that the application of the new rules is not inconsistent with the terms of the trust instrument.  Nevertheless, the new rules only apply in relation to services provided on or after the commencement of section 28.
98.Section 28(2) reverses the present common law rule which requires an express charging clause to be strictly construed against the trustee, so that, unless the trust instrument contains contrary provision, a professional trustee, who has the benefit of such a clause, may only be remunerated for services which could not have been provided by a lay trustee.  Where section 28(2) applies, the services for which a trust corporation or a trustee acting in a professional capacity may be entitled to payment include services which are capable of being provided by a lay trustee (that is, a person who is not a trust corporation and who does not act in a professional capacity as provided by section 28(6)).
99.Section 28(3) provides for restrictions on the operation of the clause in respect of charitable trustees.
100.Section 28(4) contains the second new rule of construction of express charging clauses. Under the present law, payments under express charging clauses are treated for many purposes as a gift and not as remuneration for services rendered.  The new rule reverses this rule of construction for the purposes of section 15 of the Wills Act 1837 (which renders void gifts made in a will to a witness to the will and gifts to the spouse of such a person).  The change will enable trustees to be paid for work done in connection with testamentary trusts even where they witness the will under which the trust arises.
101.In addition, by virtue of section 28(4)(b) such payments will in future be treated as remuneration for services for the purposes of determining their priority as against other payments due from the deceased’s estate (Administration of Estates Act 1925 section 34(3)).  Thus, in relation to the administration of the estate, the trustee’s charges will become an expense of the administration.  Section 33(2) prevents this provision from having an effect upon priorities in the administration of estates where the death occurred before section 28 comes into force.
Commentary on Sections Part V: Remuneration Section 28: Trustee’s entitlement to payment under trust instrument