A firm of solicitors has been appointed as the sole Executor and Trustees. They are now renouncing in their capacity as both Executor and Trustees. There is a Discretionary Trust within the Will with the potential pool of beneficiaries being son, daughter, grandchildren and brother.
Who can apply for the grant as there are no residuary legatees as such?
Any help would be much appreciated.
Thank you.
Hi Sherelle, one would usually rely on NCPR 20(b), which allows a grant to be made to a residuary legatee or devisee who is holding the residue on trust. If the solicitors have disclaimed their trusteeship, then there is prima facie no residuary legatee or devisee holding on trust. If the instrument nominates someone to appoint new trustees, that person can appoint a new trustee. He can then apply. If no one is nominated, it seems you would need to apply to the court under s.41 TA 1925. I do see suggestions in another thread ( No Appointed Trustees of a Trust ) that the renunciation is invalid. They suggest that is because s.37(1)(c) applies TA 1925 applies. However, my view is that is not correct as that section applies to the discharge of a trustee, which I do not consider includes the disclaiming of a trusteeship as a person who disclaims has never become a trustee. If they have not disclaimed, the possibility of using s.19 TOLATA comes to mind. However, the beneficiaries can only use that power where they are of full age and capacity and together absolutely entitled to the trust, which will often be a problem in a discretionary trust. I am not sure what the situation is for an equitable dispositive power, rather than a true discretionary trust.
As the solicitors have renounced as both executor and trustee, there is no one who can apply for a grant within the categories under NCPR, rule 20.
In these circumstances, I understand that an application to court under s.50 Administration of Justice Act 1985 will be required, for the appointment of a substituted personal representative. Such an application may be made by any beneficiary of the testamentary discretionary trust and would normally be commenced using a Part 8 claim form.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
NCPR 52. Discretionary Grant, under 116 Senior Courts Act. Probate Reg has the ability to make such a grant (hence NCPR 52). The notes at Para 25.105 of Tristram and Cootes set out the procedure, noting the changes set out at para 25.107 of the 3rd Supplement.