I’m dealing with a matter where there have been several changes of trustee in a trust which was set up by Deed of Family Arrangement in November 1985. Power of appointment of new trustees is statutory. We had a trustee validly appointed by deed of appointment by the existing trustees. She retired but was residing in Scotland and there was no Deed of Retirement but a notice of retirement albeit signed by the remaining trustees and the retiring trustee and their signatures were witnessed. I am appointing new trustees and using S36(1) of the Trustee Act to effectively clear off my Scottish retired trustee. Is this appropriate? I have contacted the retired trustee in Scotland via a tracing agent but she hasn’t contacted me back. Will an appointment by the sole remaining trustee of new trustees be valid?
If the trustee’s retirement has not complied with the law of the trust – England & Wales?– it must be doubtful whether such retirement was effective.
Should the trustees, other than the one who has purported to retire seek to appoint new trustees without the “retired” trustee, I suggest the appointment of any new trustee will be ineffective.
I believe that it is imperative that the “retired” trustee join in the proposed deed of appointment and retirement of trustees, themselves also formally retiring under the law of England & Wales.
This does also raise a question as to the validity of the trustees’ actions since the trustee purportedly retired. Consideration may need to be given to the beneficiaries effectively ratifying those actions.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals