I have been asked to draw up a deed of retirement/removal of a trustee of a Will trust and the appointment of the funds held to the remaindermen of the trust, the life tenant having died. The trustees are all also the remaindermen. Unfortunately the trustee that needs removing has lost capacity and is not able to sign any deed of retirement or appointment out of the funds.There is nothing in the Will which would help. Is my only option to apply for a court order?
You need to look at s36 Trustee Act 1925, which deals with the replacement of a trustee who has lost capacity. There are precedents available for such a Deed.
Do you actually need to appoint the Trust Fund? This would only be necessary if the Trust converted into a discretionary trust on the death of the life tenant or if there are subsequent interests in possession.
Thank you. I can see that removing a trustee who is also a beneficiary can be done via s36(9). As the trustee is also a beneficiary is the requirement to obtain consent from the CoP necessary where there is no proposal to replace him as trustee but rather just to remove him and bring the trust to an end.