I have a Will which appoints only one Executor & the same person as sole Trustee. Everything is left on discretionary trust with the usual provision that appointments out must be made by at least 2 Trustees.
The question I have therefore is :- Can the sole Trustee appoint another Trustee to act with him even though there was only one Trustee appointed initially?
Gary Taylor
Progressive Wills Ltd.
If the will provides that the dispositive discretion can only be exercised by at least 2 trustees, it is incumbent upon the sole trustee to appoint at least one other trustee to act with them.
Even if the sole executor and trustee is a trust corporation and, therefore, can usually act on its own, if the will does not specifically provide for the trustees’ discretion to be exercised by at least 2 trustees or a trust corporation, a second trustee will need to be appointed to enable a valid exercise of the trustees’ discretion.
Clearly, though, if the will provides the exception for where a trust corporation is acting as trustee, there is no need to appoint a second trustee.
Paul Saunders
Yes.
Halsbury’s Laws explains the position. “Trusts and Powers” Vol 98 (2013) para 244.
Paul Davidoff
Bircham Dyson Bell LLP
It would appear that they must do so and the sole trustee would have power under s36(6) Trustee Act 1925.
In the circumstances (another trustee being necessary) I cannot see anybody arguing that the appointment of a sole executor/trustee was intended to prevent further appointments.
Care should be taken over the distinction between acts in the administration and acts in the will trust - and whether the newly constituted trustees can exercise powers prior to the assent of the estate to them. This may be covered by the administrative powers.
Andrew Goodman
Osborne Clarke LLP