Removing an absent Trustee

I am dealing with a Trust where there are only two trustees and one has been absent for about 2 years with no word. Although their foreign address is known they are not responding. I see that under the Trustee Act 1925 trustees can be removed (and replacement appointed) by the continuing trustee. Is it therefore the continuing trustee and any new trustee only who would sign the Deed? All the precedents I have found refer to the retiring trustee also signing the deed.

Sharon Edelstyn
Phoenix Legal Group

It depends on the trust provisions but generally, the settlor has no power just to dismiss trustees. However if a trustee refuses to act, dies, wishes to be discharged,or is no longer capable of acting, the settlor in the first instance has the power to appoint a new trustee bearing in mind that at all times there should be at least two trustees in place.

The deed must be completed by the person(s) who has/have the power to remove trustees and appoint new trustees (the Appointor) under the terms of the Trust (this is normally the Settlor but may also be the Trustees – you will need to refer to the Trust deed.

Francesca Gandolfi
Canada Life

Sorry I should have made clear that this is a Will trust. There is no appointer and the Will is silent on the power to remove/replace. So really as I understand it there is only the Trustee Act to fall back on and it allows removal if a trustee is out of country over 12 months. I just need to know if the absent trustees consent is required as that would not be possible.

Sharon Edelstyn
Phoenix Legal Group