1 s69 (2) TA 1925 should allow the STEP provision to override s36, provided nothing else in the Will contradicts that.
2 the STEP provision 18.3.2 arguably overrides s36(9) although a contrary argument might be made as to whether the plural includes the singular there. (Of course the contrary argument is there is no override but in my view subsection (9) is a qualification of an “additional power” per s69(2) and the whole power can be overridden by a manifestly intended contrary provision.)
s6(c) IA 1978 says that the plural includes the singular but this Act only applies to legislation and SIs. s23 (3) by providing a limited exception for its application to deeds and other documents emphasises its general inapplicability to those documents. WA 1837 is silent. My textbook research on construction seems not to cover the point, although the rules about divining the intention of the testator indicate that anyone arguing that a sole trustee can act under 18.3.2 is likely to fail. This is boilerplate and most testators do not pay attention to it or receive a detailed commentary from an adviser on its meaning and implications. ( I note that some Will precedents employ the inclusive meaning but e.g. Practical Law and Kessler precedents do not. This does not matter in the key definition of “Beneficiaries” as in the context a relevant class e.g… “My Descendants” plainly includes a sole member.)
s36 (1) TA does not need the IA because it makes clear that a sole trustee can appoint a new trustee in the circumstances prescribed. But s36((9) is clearly a limitation on para (b) whether there is one other trustee or several. It is not however a limitation on para (a) so a person entitled to appoint under the Will could do so. However this subsection (1) operates to replace a trustee and the STEP clause is directed to that alone.
s36(6) permits the appointment of an additional trustee. If that is done under (6)(a) then you have a plurality for 18.3.2. and the doubt disappears. Of added assistance might be a clause allowing trustees to act by majority, indicating an imputed intention of the testator that the other two trustees could have overruled the incapable trustee even if not incapacitated. s36 (6) (b) does not help as the incapacitated is still a trustee “for the time being”. In the absence of the STEP provision even the additional trustee route would be stymied for the same reason, apart from majority rule, and the provision only relates to para (b).
If no such person is appointed under s36(6)(a) my expectation is that a judge might not allow a sole trustee to invoke 18.3.2. The remedy when drafting anew would be to amend STEP 18 to make it clear that a sole trustee can act under 18.3.2 and can do so s36(9) notwithstanding. That must be weighed against the consequent loss of its protection for the incapacitated trustee’s interest through loss of their trustee veto if they have that (unanimity required). The perceived mischief in replacing such a trustee would seem to reside in its facilitating the remaining trustees to use a dispositive power to devalue or extinguish that interest, although such an exercise would have to stand up to the general equitable scrutiny of any such exercise.
So that scrutiny would still hover over an exercise of that nature which followed a valid replacement under 18.3 even if amended as above.The important difference is that if 18.3.2, in whatever form drafted, does not allow a replacement at all, any attempt would be void whereas if engaged lawfully subsequent scrutiny can only make the exercise of a power voidable e.g. if the trustees have failed to consider its use properly. If s 36(6)(a) is used first, a void exercise should not be a risk given two other trustees but the amendment makes it clear that the overriding of s36(9) is fully contemplated.
Jack Harper
| Lawyer Christina
5 March |
Thank you for your input.
Looking to the provisions - The STEP provisions say
For the purposes of s.36 Trustee Act 1925, a
Person will be deemed incapable of acting as a
trustee, or of exercising the power referred to
in s.36(1)(b), if:
18.3.1 There is a Court of Protection deputy
appointed to manage that Person’s
property and financial affairs;
18.3.2 All the Trustees or all of the other
Trustees, as the case might be, in
reliance upon written advice from a
suitably qualified medical practitioner,
resolve that the Person is incapable of
fulfilling the role in question under the
Trust.
18.3.3 For the avoidance of doubt, where
the Person is deemed incapable of
exercising the power referred to in
s.36(1)(b), that power is exercisable as
though that Person had died
Clause 36(9) says:
Where a trustee [lacks capacity to exercise] his functions as trustee and is also entitled in possession to some beneficial interest in the trust property, no appointment of a new trustee in his place shall be made by virtue of paragraph ( b ) of subsection (1) of this section unless leave to make the appointment has been given by the Court of Protection
Just to be 100% clear for my benefit, is it correct that the STEP provisions would allow an incapacitated trustee, who is the life tenant of an IPDI, to override the provisions in clause 36(9) and treat the incapacitated party as having died, and there would be no need to apply for a COP order? I just wonder whether because this is a protective measure for the life tenant, this is valid but presumably it must be. Maybe i’m overthinking it.