Q&As

A Will appoints X, Y and Z as executors and trustees. X and Y obtained the grant with power reserved to Z. The Will does not have a clause providing that the trustees are those just named on the grant and so X, Y and Z are the trustees of an IPDI trust created under the Will. Z lacks capacity to act as trustee and cannot sign any form of disclaimer or deed of retirement. Do X and Y need to take any steps to formally remove Z as a trustee? There are no special powers of appointment or retirement under the Will and so just the statutory powers apply.

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Produced in partnership with Helen Galley of XXIV Old Buildings
Published on LexisPSL on 20/06/2018

The following Private Client Q&A produced in partnership with Helen Galley of XXIV Old Buildings provides comprehensive and up to date legal information covering:

  • A Will appoints X, Y and Z as executors and trustees. X and Y obtained the grant with power reserved to Z. The Will does not have a clause providing that the trustees are those just named on the grant and so X, Y and Z are the trustees of an IPDI trust created under the Will. Z lacks capacity to act as trustee and cannot sign any form of disclaimer or deed of retirement. Do X and Y need to take any steps to formally remove Z as a trustee? There are no special powers of appointment or retirement under the Will and so just the statutory powers apply.

A Will appoints X, Y and Z as executors and trustees. X and Y obtained the grant with power reserved to Z. The Will does not have a clause providing that the trustees are those just named on the grant and so X, Y and Z are the trustees of an IPDI trust created under the Will. Z lacks capacity to act as trustee and cannot sign any form of disclaimer or deed of retirement. Do X and Y need to take any steps to formally remove Z as a trustee? There are no special powers of appointment or retirement under the Will and so just the statutory powers apply.

Where a Will appoints X, Y and Z of executors and trustees and X and Y obtained the Grant of Probate with power reserved to Z, Z will need to be retired as trustee of the ongoing trusts established by the Will unless the Will makes any provision to the contrary.

Given that Z does not have the capacity to disclaim the trusteeship, it may be possible to replace Z under the provisions of section 36 of the Trustee Act 1925 (TA 1925). The power to replace a trustee under TA

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