Settlor has died, but prior to doing so (many months) signed a trust deed, but the co-trustee did not sign. Can the co-trustee now sign and validly take up his appointment?
If not, do the PR’s of the Settlor act as trustees, or can a beneficiary apply to be a trustee?
I believe the trust is valid on the basis that the settlor has signed the deed and treated the property as trust property. Any comments would be appreciated.
Haroon Rashid
I Will Solicitors Ltd
I suspect it might be possible to treat the trust as valid but it is equally possible that the trust would only be valid if the property had been transferred to the trustees jointly.
In either case, I don’t think the trust deed can be signed now (it would be delivered after the settlor’s death). If you conclude the trust applies to the property (I think there is a section in Halsbury’s on perfecting gifts), the PR’s can appoint T2 and others as trustees under s.36(1)(b).
Andrew Goodman
Osborne Clarke LLP
Thank you Andrew. I have looked further into this and agree that it cannot be signed post death. However, there is provision within the deed for a named party to appoint new trustees after the death of the settlor so that should solve the problem, failing which s36 (1) (b) applies. (I am satisfied that the property was transferred into trust and this is supported by a restriction being entered at the land registry stating that there should be no disposition save in accordance with the trust, or words to that effect).
Haroon Rashid
I Will Solicitors Ltd