I would appreciate any assistance. I am dealing with a deceased’s estate where there are a number of policies written in trust. These were taken out in the 1980s
The policies are missing so all I can rely on is the information given by the insurance company as to who the trustees are but they have no information on the beneficiaries as they do not retain copies of the policies. I am told that for two of the policies only the deceased husband and his wife are the trustees. The wife is mentally incapable. There are two daughters who would like to replace the wife as trustees. There is no other trustee. Can the daughters appoint themselves under section 36(1) of the Trust Deed as they are the executors of the deceased father’s will and also named in their mother’s will. They have a lasting power of attorney for mother but I understand that cannot be used for trustee powers. If not, is an application under section 41 needed which will mean a court application?
Currently there is only the mother as the surviving trustee and she is mentally incapable. You are correct in that trustee duties cannot be delegated by a power of attorney (unless specifically mentioned). S36 TA 1925 allows a mental incapable trustee to be replaced but the power is given to the
“(a)the person or persons nominated for the purpose of appointing new trustees by the instrument, if any, creating the trust; or
(b)if there is no such person, or no such person able and willing to act, then the surviving or continuing trustees or trustee for the time being, or the personal representatives of the last surviving or continuing trustee;”
My opinion is that the daughters cannot step into the shoes of their mother (continuing trustee) to remove her and appoint themselves so the only option available is for them to apply to the Court under S41.
You should also consider who the beneficiary might be - if the mother could potentially be the beneficiary then an application to the court is required S36(9) anyway.
Kim Jarvis
Vitality
S36(1) provides a priority ordering of persons who have the right to appoint new trustees. Persons nominated in the trust instrument (which it seems there is no-one); the surviving or continuing trustees (there is one, namely, mother); the PRs of the last or only surviving trustee (mother only surviving PR and is not dead).
Mother, however, is it seems is “in capable of acting”.
In short, it seems there is no person who may remove mother and appoint two children as trustees.
S36(9) provides that if a trustee is incapable of acting (MCA 2005) and is entitled to a beneficial interest in possession (which seems possible) a replacement trustee cannot be appointed without consent of the relevant authority possessing jurisdiction over that person (under MCA 2005).
