Where a trust deed specifically includes the provisions of STEP 2 Standard and Special Provisions, do these STEP provisions supersede the provisions defined by, for example, the Trustee Act 2000, insofar as these latter provisions apply to agents, nominees and custodians?
I am particularly interested in Forum Members’ views on, under the circumstances described, who can and who cannot be appointed as an agent, nominee and/or custodian for a bare trust or a discretionary trust in which the STEP provisions are incorporated in the Trust Deed.
The STEP 2 Standard and Special Provisions’ definition of Person, for example, appears to suggest that the powers to appoint Nominees (clause 4.10) and to Delegate (clause 15) are less onerous than those defined by the Trustee Act 2000, etc.
Following my post last night, I am now pleased to be able to report that I have found the answer I was looking for. Section 21.45 in James Kessler and Charlotte John’s book, Drafting Trusts and Will Trusts - A Modern Approach, clearly points to the fact that it is accepted in legal precedent that the provisions in STEP 2 2nd Edition, in respect of nominees, overrides those powers contained in ss.16-20 Trustee Act 2000.
Although James and Charlotte’s advice, as set out in their book, appears to relate specifically to nominees, my interpretation is that it also relates to the appointment of custodians.
Having stated this, I’m wondering if it also relates to trustees appointments of agents. Although not important to my work at the moment, any Forum Member’s thoughts would be gratefully received.
The powers granted under the law of trusts extend by way of supplementation those which may be contained in any particular trust deed albeit subject to the terms of the deed restricting/excluding such powers.
TA 2000 s19(1) lays down the circumstances under which Trustees may appoint agents, nominees or custodians but the terms of a trust deed may, as indicated above, modify or exclude the conditions specified in s19(1).