S 36(4) Trustee Act 1925 provides that the power of appointing new trustees is exercisable by the executors of the last surviving trustee where those executors have proved the will of their testator. S 36(5) provides that this power may be exercised by a sole executor intending to renounce probate and without accepting the office of executor.
If the power is exercised under S36(5) presumably a certified copy of the will (if it is never admitted to probate) should be kept with the trust deeds?
The will could subsequently be found to be invalid making the appointment invalid so would best practice be to ignore s36(5) altogether and simply ask the Court to appoint trustees under s41 ?
If the sole executor does not renounce and the will is never proved do members agree that the only option is to ask the Court to appoint trustees under s41?
Julian Simmons Korn
Retired Solicitor