I used Mr Kessler’s version but, not surprisingly, the two relevant clauses are identical. I have amended them as suggested to allow other key persons to consent where no Independent Trustee is currently a trustee, to avoid having to appoint one. The main area concerns individuals originally appointed as trustees where the client may well envisage that relevant transactions involving them would be highly likely and desirable. This is not so obvious usually with successor trustees.
It is usually fundamental that original trustees at least should be able to benefit from the exercise of dispositive trustee powers. They are often the, or among the, main intended beneficiaries of these. If being a trustee is not to be a bar to benefiting from such powers, some thought needs to be given to the Appointment of New Trustees clause and any power to add a beneficiary to the original eligible class.
The self-dealing rule has a sound objective but care is needed that it does not adversely affect intended beneficiaries.
I only favour an original independent trustee if there is no suitable family candidate or a definite risk of conflict among beneficiaries. Family trustees can get their advice or professional assistance where they wish and need not go to the Supreme Court at the drop of a hat. I am not impressed by an engagement letter written from a firm to partners in it acting as original executors or by some professional trustees’ terms of retirement.
Jack Harper