A Will appoints the partners in a firm of solicitors as executors and trustees. It goes on to express the wish that no more than two of the partners should prove the Will “and act initially in its trusts”. The “Trustees” are then defined as “my executors or the trustees for the time being” or “my personal representatives for the time being who act lawfully in the administration of my estate or the trustees for the time being”.
Probate is then obtained in the name of one or two partners, with power reserved to the others.
This is a very common scenario and I have come across different approaches to the question of who are the trustees? One approach is that it is only those partners who prove the Will; another is that it is all the partners, and those who are not to act must renounce the trusteeship. I am inclined to think that the former is correct, on the basis that the other partners are not acting and do not therefore fall within the definition of the Trustees, but I should be glad to know what approach others take. It can particularly be relevant/problematic when trying to prove to the investment managers who the trustees are.
I think the issue here is whether or not there is a distinction between the appointment of executors and the appointment of trustees
It used to be a common approach to appoint the partners as executors and trustees without distinguishing between the 2 offices. Any non-proving executors were still appointed as trustees and would then have to retire.
A more modern approach is to appoint the partners just as the executors and then to have a separate definition of the trustees, as appears to be the case here. One such definition of the trustees might be: “those persons who take out the first grant of representation (not being a grant limited to settled land) to my Estate”. Another way would be to define the executors as “the persons entitled for the time being by law to administer my Estate” and to then define the trustees as “the Executors or the trustees for the time being of the Trust Fund”. I assume the definition of executors is intended to mean just those who take the grant. Either way would mean that it is only the proving executors that then become the trustees.
My take on this is that the old and pragmatic approach was that the proving partners became the first trustees. But I can quite see that legally unqualified compliance people in financial organisations might interpret the clause as purporting to appoint all the partners in the firm at the time - or possibly any partner ever!
An express disclaimer would (probably) satisfy them, but perhaps there is some help in the argument that trustees can’t be unilaterally appointed by the settlor/testator and must accept their appointment, and then by taking active steps as trustees, demonstrate their acceptance. So a declaration by one or both of the original trustees that no other person has sought to exercise a right to act as trustee might resolve a compliance officer’s dilemma. Its more difficult if the original trustees are no longer around, and if the current trustees have not been in office for long. You can of course point to the fact that assets have not been vested in any other trustee than those shown, and that a trustee acting as such is obliged to secure assets in their own control.
Possibly a quick solution might be to invite counsel to provide a written opinion that only A and B are the trustees and then to produce that to the compliance people.