In Moyle v Quarles [No 3] [2025] WASC 443, the Supreme Court of Western Australia examined the operation of section 98 of the Trustees Act 1962 (WA), focusing on the circumstances in which a professional executor may charge for services rendered in the administration of an estate. The decision offers significant clarification on how statutory entitlements to remuneration interact with fiduciary obligations that normally prevent executors from profiting from their position.
Justice Lundberg confirmed that s 98(1) authorises the Court to approve an executor’s commission or percentage-based remuneration if it is “just and reasonable.” Separately, s 98(5) independently authorises professional trustees and executors, such as lawyers or accountants, to charge their usual professional or business fees for work connected with the trust, even if those tasks could have been performed by a lay executor. This provision does not require prior court approval, provided there is no contrary direction in the will or trust instrument.
Drawing on earlier authorities, including O’Brien v Warburton and Atkins (Re Estate), the Court reaffirmed that the statutory framework strikes a balance between preventing conflicts of interest and recognising the legitimate right of professional executors to be compensated for their professional expertise and time.
The Court endorsed Le Miere J’s view that remuneration encourages competent and efficient administration. A remunerated executor is more likely to devote adequate time and resources to the estate’s management.
Fees may include legal or accounting services provided by the executor or their firm, as long as they are properly connected to the administration of the estate and reflect standard professional rates.
Where both apply, the Court may consider any amounts already paid under s 98(5) when deciding on additional commission under s 98(1), preventing double recovery.
1. Professional executors, such as lawyers, accountants or licensed trustees, now have clear statutory support for charging standard professional fees under s 98(5), provided the will does not expressly prohibit it. This reduces uncertainty and the need for applications for court approval in straightforward estates.
2. Despite the statutory permission, fiduciary duties remain. Professional executors must ensure transparency and maintain clear records of time and charges. Beneficiaries should be informed early that professional fees will be charged, and engagement terms should be documented to avoid disputes.
3. Will drafters should clearly specify whether executors may charge professional fees, a commission, or both. Explicit authorisation in the will can prevent later contention among beneficiaries or co-executors.
4. Clients appointing professionals as executors should be advised of the potential cost implications and benefits, namely improved efficiency and reduced risk of mismanagement due to professional oversight.
5. Executors should delineate between tasks undertaken in their capacity as executor (non-chargeable under fiduciary duties) and those performed in a professional capacity (chargeable under s 98(5)). This distinction remains vital for compliance and audit purposes.
This decision reinforces the legitimacy of professional executors receiving proper remuneration and clarifies how Western Australia’s Trustees Act accommodates modern estate administration practices. It promotes professional involvement in estate management while maintaining fiduciary accountability and beneficiary protection.
For practitioners, the case provides authoritative guidance to:
For specific legal advice, please contact Jim O’Donnell, Sally Bruce, Jemal Zagami or Maree van der Kwast.