Q&As

Section 36(9) of the Trustee Act 1925 provides: (9) Where a trustee lacks capacity to exercise their functions as trustee and is also entitled in possession to some beneficial interest in the trust property, no appointment of a new trustee in their place shall be made by virtue of paragraph (b) of subsection (1) of this section unless leave to make the appointment has been given by the Court of Protection. What does ‘entitled in possession to some beneficial interest in the trust property’ mean in this context? In particular, does it include a beneficiary under a discretionary trust?

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Produced in partnership with Oliver Auld of Charles Russell Speechlys LLP
Published on: 29 October 2019
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An entitlement in possession comprises a present right to present enjoyment, that is a vested and indefeasible interest in the net trust income (see Pearson v IRC). It does not include a beneficial interest that is defeasible or discretionary.

Section 36 of the Trustee Act 1925 (TA 1925) grants certain powers in relation to the appointment of a replacement trustee or trustees where a trustee dies, remains out of the UK for more than 12 months,

Oliver Auld
Oliver Auld

Oliver specialises in advising UK and international clients in relation to a wide range of contentious trust, probate and other private wealth disputes. He acts for a diverse range of high net-worth individuals, professional trustees and other fiduciaries, who are involved in the management of family wealth. He also acts for clients involved in sensitive and confidential disputes in the Court of Protection. Oliver's practice predominantly involves complex and multi-jurisdictional disputes in relation to inherited wealth and assets held in English and offshore family trusts. He advises clients on claims challenging the validity of wills and under the Inheritance (Provision for Family and Dependants) Act 1975 and is experienced in acting for a trustees and beneficiaries in a wide range of contested and uncontested court applications to resolve issues that have arisen in the administrations of trusts and estates. His recent reported cases include: ' Cowan v Foreman and others [2019] EWHC 349 (Fam) ' Right Hon Gloria Wesley, Dowager Countess Bathurst v Chantler and others [2018] EWHC 21 (Ch) ' Shearer v Kevin Neal Associates Limited (2017) ' Wooldridge v Wooldridge [2016] (Case No: 3CL1022132) Oliver was recognised as 'Next Generation Lawyer' by the Legal500 in 2017 and an 'Associate to Watch' by Chambers and Partners in 2018 in the field of contentious trust and probate.

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