T’s will appoints W and the Partners in Firm P as executors. Trustees are the “persons who first obtain probate of this will”. W has died since T died without proving and the partners in Firm P have renounced. Seemingly no-one can now apply for probate (as opposed to Letters of Admin with will) and thus no-one can be a trustee as provided for in the will. Will contains an NRB trust it is desired to wind up by appointment out. As the NRB Trust has potentially unascertained and actual or potential infant beneficiaries s20 TOLATA 1996 will not work(unless it can be “fudged” as the beneficiaries of the residuary administration trusts are ascertainable). Can this be resolved without an application under s41 Trustee Act ? The will does not give anyone power to appoint trustees.
Roger Hancock
Whoever takes the grant has the power to appoint trustees, which could include themselves.
It is important in these situations to ensure that the proposed trustees are not to benefit under the exercise of the discretion as, unless the provisions of the will specifically provide otherwise, a trustee cannot act to benefit themselves.
Paul Saunders
Was the renunciation by the partners before or after the death of W?
Julian Cohen, Solicitor
Thank you Julian - after W’s death
Roger Hancock
You will need to persuade the Firm to apply to retract their renunciation
Simon Northcott
Surely this power is under s18 TA1925 - and (as I read it) would mean the PRs of the last trustee could appoint. As the wording of the will means there is no trustee until an executor has proved would this apply ? or is there another enabling provision ?
Roger Hancock
I believe either the Firm applies for probate or the court has to appoint trustees, subject always to the wording of the Will
Simon Northcott