Acknowledging Costs Information Is Not Written Agreement | SCCO Finds No Right To Charge Under Section 29(2)

In Royal Holloway and Bedford New College v QLaw Legal Services Limited [2026] EWHC 2090 (SCCO), the SCCO held that a lay co-executor had not agreed in writing to professional executor remuneration under section 29(2) of the Trustee Act 2000. Her request for an estimate, her acknowledgment of emailed costs information and her acquiescence in the bills all fell short. Firms named as executors in wills without a charging clause should note what fails.

Background

The Claimant was the residuary beneficiary of the estate of Ms Selby, who died on 20 November 2022. Her will appointed her friend, Ms Malcher, and the directors of the Defendant, which traded as Quantick Daley Solicitors, as executors. Mr Quantick, the Defendant’s sole director, accepted the role of joint executor [2], [3], [4]. The will contained no charging clause [5].

Between January and July 2024 the Defendant rendered bills totalling £53,187.60 for Mr Quantick’s services as professional executor. The Claimant applied under section 71(3) of the Solicitors Act 1974 for an order for their assessment [6]. The court ordered assessment and directed that the Defendant’s right to receive remuneration be heard as a preliminary issue [7].

Costs Issues Before the Court

With no charging clause in the will, the court had to decide whether the Defendant had any right to charge the estate for Mr Quantick’s services. The Defendant relied on a pre-death letter to Ms Selby and on costs correspondence with Ms Malcher in January 2023. The central statutory question was whether Ms Malcher, as Mr Quantick’s only co-executor, had agreed in writing within section 29(2) of the Trustee Act 2000 that he could be remunerated [39], [41].

The Parties’ Positions

The Claimant’s case was that, absent a charging clause and compliance with section 29(2), there was no mechanism by which the Defendant could charge the estate for Mr Quantick’s services [31]. It also argued that Ms Malcher had not given informed consent [40].

Mr Quantick, for the Defendant, argued that the Trustee Act 2000 required proper authorisation and that the Defendant had it [33]. He relied on the notification to Ms Selby that the directors would charge as professional executors, said that Ms Malcher would have been aware of that agreement because she forwarded the letter, and referred to the January 2023 costs correspondence [34].

The Court’s Decision

Section 29(2) of the Trustee Act 2000 entitles a trustee acting in a professional capacity, who is not a trust corporation, a trustee of a charitable trust or a sole trustee, to reasonable remuneration out of the trust funds if each other trustee has agreed in writing that he may be remunerated [8]. Section 35(1) applies the Act to personal representatives administering an estate [10].

Costs Judge Leonard set out the Court of Appeal’s explanation of the policy behind these provisions in Shepherd & Co Solicitors v Brealey [12], [13]. Sir Nicolas Patten recorded that the Law Commission “rejected a proposal to introduce a general statutory charging clause as a default power because of the need for transparency and the prevention of abuse.” [13]

In Shepherd, the lay executor had instructed the solicitor executor, signed retainer documentation and approved bills. Section 29 was still not satisfied, because another partner appointed as executor had not agreed in writing. It made no difference that he had played no part in the administration [18].

The Defendant’s reliance on the pre-death letter to Ms Selby failed at the outset. Her executors were appointed by her will, and a right to charge could not have been conferred by the letter or by the discussion it recorded [38]. That left section 29(2) as the statutory route to professional executor remuneration.

The judge concluded that Ms Malcher, as Mr Quantick’s only co-executor, had not agreed in writing that he be remunerated [39]. He first set aside two lines of argument. The contractual principles that would normally establish the existence and terms of a solicitor’s retainer were not to the point. Nor was the Claimant’s informed consent argument, since informed consent is not a requirement of section 29(2) [40].

The question was, rather, whether Ms Malcher had agreed in writing, within the meaning of section 29(2), that Mr Quantick could be remunerated for his professional services as executor [41]. The judge then took each strand of the Defendant’s evidence in turn.

Ms Malcher’s de facto acquiescence in the Defendant rendering charges to the estate could not constitute agreement sufficient to satisfy section 29(2). She had reminded the Defendant in January 2023 that she had not received a costs estimate [23]. That request for an estimate was “no more than evidence of that de facto acquiescence” [42].

The January 2023 correspondence fared no better. Ms Lamie’s email set out hourly rates for fee earners, the work to be charged and the charging structure [25]. It said bills would ordinarily be met from estate funds [26]. Ms Malcher replied thanking her for the assurances and the costs information, but the promised terms of business were never sent [27].

The judge held that this exchange, in which costs information was sent and its receipt acknowledged, did not constitute a written agreement on Ms Malcher’s part. He added that it “would be inconsistent with the plain meaning and the underlying purpose of section 29(2) of the Trustee Act 2000 to allow the Defendant to rely upon an implied agreement on Ms Malcher’s part” [43].

It followed that the Defendant had no right to charge the estate for Mr Quantick’s services as professional executor [44]. The preliminary issue was limited to whether a right to remuneration existed. The judge therefore did not address whether, and to what extent, the court should exercise its discretion to permit remuneration [45].

Practical Implications

This is a first instance decision of the SCCO, but it applies the statutory wording directly. Where a will has no charging clause, professional executor remuneration under section 29(2) depends on each other executor having agreed in writing. Firms should obtain the written agreement of every co-executor that the professional executor may be remunerated for the services.

Sending costs information and receiving a reply of thanks is not enough. Nor is a co-executor’s request for an estimate, or her acquiescence in bills being rendered to the estate. The court would not allow reliance on an implied agreement [43], so conduct cannot fill a gap in the paperwork.

Because contractual retainer principles were held not to the point [40], practitioners defending such bills gain nothing by arguing that a retainer was formed with the co-executor. The question is the narrow statutory one. Equally, beneficiaries challenging bills need not argue informed consent, which section 29(2) does not require.

For residuary beneficiaries, a preliminary issue on the right to remuneration, as ordered here within a Solicitors Act assessment [7], can determine entitlement before quantum is examined. Firms appointing several directors or partners as executors should also recall from Shepherd that written agreement is needed from all the executors, whether or not they take part in the administration [18].

s71(3) | Beneficiaries Who Pursued Unreasonable Solicitors Act Assessments Bear the Costs Personally

CPR 46.9(3) | Informed Consent In Solicitors Act Detailed Assessments

CPR 46.9(3)(c)(ii) | Is Informed Consent Required? | And The One Fifth Rule

Informed Consent And Alleged Termination Of Retainer | High Court Appeal