If a Will appoints a person as their sole executor (rather than executor and trustee), then creates a trust in the body of the Will, does the appointed executor have the power to act as trustee, or appoint a trustee, to administer the trust?
The appointed executor in the case I am dealing with has died and I am not sure if their own personal representative has the power to appoint a trustee of the original Will in this case.
A PR does not have the power to appoint a trustee although the PR of a deceased sole trustee does have such power [see TA. 1925, s. 36(1)(b)].
Malcolm Finney
Whilst I agree with Malcolm that s.36 Trustee Act 1925 does not address thus situation, I recall (in a former life) being told by counsel that in such a situation the executor is a de facto trustee and should formally appoint trustees, whose number could include themselves.
I am sure that counsel will have identified the authority for this, but I have no access to any documents. I am inclined to think it relied upon case law, rather than statute, having had a quick look at both the Administration of Estates Act 1925 and the Law of Property Act 1925.
If the text books provide no support, it may be necessary to consider applying to court for the appointment of trustees, in which case I suggest running the matter past Chancery counsel sooner rather than later, as their services may be required to move the matter forward in any event.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
Further to my earlier post I would add that where executors but no trustees are appointed under a will (but also in general), on completion of the administration of the estate the executor becomes a trustee automatically. As such (ie as trustee) he is then in a position to appoint additional trustees. This does require that the executor’s status has become that of trustee; it would seem if the sole executor died before this transformation my above post would be in point.
Assent in the appropriate manner (eg in writing re land) by the executor in his own favour as trustee is necessary.
If the executor dies when acting qua trustee the executor of the estate of the deceased executor/trustee can then appoint a new trustee.
Paul’s reference is I suspect a reference to Re Cockburn’s WT [1957} and/or Re Ponder [1921].
Malcolm Finney