Executor and Trustee

Trusts Discussion
1

This matter is in respect of a deceased estate.

Two people were appointed to act as both executors and trustees. The trustees were to hold the residuary on trust after probate, before distribution. One died leaving a sole trustee, who was from one side of the family Side A who did not like the other side of the family Side B.

The solicitor advising purportedly the estate but instructed by the sole executor/trustee Side A wrote to the beneficiaries from the other side Side B of the family stating there was no way in which even the court could replace the deceased executor/trustee (Side B has suggested someone from their side replace the deceased executor/trustee to provide necessary balance and access to documents).

A parcel of land was subsequently sold by the sole trustee which contained an overage clause to be paid up to a duration lasting 25 years if planning permission was obtained. However, the transfer was executed by the sole trustee as an ‘executor’ notwithstanding that any overage payment paid would be held on trust by such trustee to distribute at a later date.

In the circumstances, does the transfer provide good title to the purchaser of the land under Section 14 of the Trustees Act 1925 (which requires 2 trustees to provide valid receipt)? And what would stop the sole executor pocketing any future overage payment bearing in mind no reference to that persona acting as a trustee?

Duncan Mayes
DRM

2

In the circumstances, does the transfer provide good title to the purchaser of the land under Section 14 of the Trustees Act 1925 (which requires 2 trustees to provide valid receipt)?

I suspect so. If there was nothing in the will that prevented the executor selling the land, and the administration had not concluded, they could likely sell as executor and s.14 would not apply.

And what would stop the sole executor pocketing any future overage payment bearing in mind no reference to that persona acting as a trustee?

Fear of prison for fraud? Once the estate admin was concluded, he could also appoint a second trustee under the statutory powers of appointment, although that is voluntary on his part.

Andrew Goodman
Osborne Clarke LLP