Where an infant is absolutely entitled on the intestacy of a deceased person to a residue or share of the residue, s.42 of the Trustee Act allows the personal representatives to appoint people as trustees of the residue or share of the residue for the infant
I do not understand in what situations an infant would be absolutely entitled to the residue or share when there is an intestacy. I thought the only possible interest a minor could have on an intestacy was an interest in the residue contingent on their reaching 18. As the interest is contingent, the interest is not absolute, and, therefore, it seems there is no situation in which the personal representatives in an intestacy situation have the power to appoint trustees under s.42. Am I missing something?
Under s.46 Administration of Estates Act 1926, a minor’s share is held upon statutory trusts, which require the minor to attain age 18 - is that not a contingency?
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
Absolutely Paul, it seems that the only interest granted to an infant on an intestacy is a contingent interest. However, s.42 has wording allowing for the personal representatives to appoint trustees where the infant is absolutely entitled to a share of the residue. It does not seem there is any situation where that applies. The only thing I can think of is perhaps that section did apply before the changes to the intestacy provisions.
The original s.46(1) Administration of Estates Act 1925 imposes the statutory trusts on any minor intertest.
Under the statutory trusts, the minor’s entitlement vested on attaining age 21 (now age 18) or marring under that age. Accordingly, s.42 Administration of Estates Act 1925 (not Trustee Act 1925) could have been called upon once a minor beneficiary married. However, now that the Marriage and Civil Partnership (Minimum Age) Act 2022 is in force in England & Wales, s.42 AEA will have only be relevant where non E&W persons are entitled.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
That is also a very sensible answer. Thanks for your help, Paul.
Taking into account that s.42 does not, except in the case of minors married abroad, allow the personal representatives to appoint trustees of the residue held on the statutory trusts for the minor, is there any other legal provision which gives the personal representatives power to appoint trustees?
My understanding is that s.42 AEA 1925 does not exclude the ability to appoint new or replacement trustees under s.36 Trustee Act 1925. It is therefore open to the PRs to formally appropriate assets to themselves as trustees for the minor beneficiaries and then use the powers under s.36 TA 1925 to appoint the intended trustees.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals