Where a Will establishes a testamentary trust over only part of the residue, can a personal representative discharge fees for taking financial advice from the estate as a whole during the period of administration? Once the testamentary trust comes into force, can the trustee pay for ongoing financial advice from the trust fund?

Where several beneficiaries form part of the estate, it will often be necessary to draw a distinction between: (a) expenses incurred by personal representatives (PRs) and properly payable as testamentary and administrative expenses; and (b) expenses properly payable by the individual legatees out of their share of the estate. The general principle was settled in Sharp v Lush where it was held that the estate must bear the expenses 'incidental to the proper performance of the duties of personal representatives as personal representatives'. However, this did not extend to expenses incurred during the execution of trusts arising after administration. The principle applies equally to testate and intestate administrations. For more information, see: Funeral, testamentary and administrative expenses: Tolley's Administration of Estates [D9.15].

Although administration expenses are generally borne by the residuary estate, it may in certain circumstances be necessary to determine whether to set them against capital or income. In Revenue and Customs Commissioners v Trustees of the Peter Clay Discretionary Trust, the Court of Appeal held that an expense incurred 'for the