Q&As

Our client is the settlor and one of three existing trustees. As the settlor she has an express power in the trust deed to remove trustees by deed and she wishes to remove the other two trustees and replace them within the same deed. Does it matter that the two outgoing trustees are not willing to cooperate by signing the deed?

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Produced in partnership with Oliver Hilton of Radcliffe Chambers
Published on LexisPSL on 29/06/2018

The following Private Client Q&A produced in partnership with Oliver Hilton of Radcliffe Chambers provides comprehensive and up to date legal information covering:

  • Our client is the settlor and one of three existing trustees. As the settlor she has an express power in the trust deed to remove trustees by deed and she wishes to remove the other two trustees and replace them within the same deed. Does it matter that the two outgoing trustees are not willing to cooperate by signing the deed?

As an alternative to the removal of trustees by court order, it is well established that removal may be effected pursuant to the exercise of an express power contained in the trust instrument.

For those purposes, before the exercise of the power the following must be considered:

  1. Whether proposed removal is within the scope of the authorisation given in the power;

  2. If so, what are the specific requirements and modes for the exercise of the power, and to follow them; and

  3. Should the power in fact be exercised as proposed?

The first question to ask is whether on the true construction of the power the settlor in this case would in fact be authorised to remove their co-trustees and to do so unilaterally.

It is assumed in this Q&A that the power is to be exercised by deed. A deed is therefore an essential prerequisite to a valid removal. However, there is no clear reason why, if the express power does not require it, the outgoing trustees would strictly need to be a party to it for the removal to be effective.

There is however a practical reason why this would not be prudent. This is because, without a court order, the trust assets would not vest in the settlor/trustee, but instead remain in the hands of her and her co-trustees. T

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