Trustee not responding to remainderman

Hi there.

My father died 3 yrs ago… He left a life interest trust to my mother in law. Leaving 60% (of what he owned in their house) to me and my kids when mother in law dies.(will clearly states this).

She’s now remarried, sold the house and moved on. Dad’s 60% is of course in the new house she bought. Trustee (uncle) stepped down and a solicitor took his place to look out for the trust.

As named remainderman I wrote to trustee to ask to be provided with
1- Trust document
2- confirmation of trustees
3 - confirmation of trust assets (as have zero idea where dad’s 60% is now).

I wrote to trustee 10 days ago. Zero reply at all. How long should I wait and what do I do if trustee simply ignores me? I have no idea where mother in law has moved to and she no longer speaks to me and my family.

Thanks for your help

Do you mean stepmother?
You can find a copy of a will trust by obtaining a copy of the will here:
Search probate records for documents and wills (England and Wales) - GOV.UK (www.gov.uk)
10 days is not particularly long after three years when you consider that (a) it’s half term and only 7 working days (b) they will have to confer with any co-trustees and (c) it may require some work to put the assets together if they’ve been invested.
You can always call to confirm they received your letter/email.

Thank you, step mother yes.

I know she bought a new house, and cut ties with me in the process, long story but she also tried to have me sign to reduce my share stated in will by a large amount, which I refused.

So naturally I am curious if the 60% is safe and recognised. Hense trust accounts request. I do have the will, but asking incase any other docs exist as step mother never wanted me to see anything at all.

As you say a week / 10 days isn’t too long. I’ll. Wait longer.

If no response at all after 2 to 3 weeks, what would be my next steps? Asking for confirmation of assets seems reasonable given my father names me and my kids in his will and now step mother has vanished and remarried (no remarry clause is in the will, which surprised me as dad said a remarry clause was in there…)

Following the death of your Father, the property was then owned as 60% The Trust and 40% Mother in Law.(Stepmother ?) That should have been registered at the land Registry by the executors of the Will. The reason for the registry is to ensure that any transfers of the property in the future and protected,

If the registration did not take place, then the executors are liable.

Do you know the value of the property when it was sole, as this is important to establish your eventual ownership, although the Will of your Father may well have allowed for your mother in law (stepmother?) to move house as required, but retaining the interest of the ultimate beneficiaries.

That value would also be expected to increase over time invested in property and as such, you need to establish that the new property is owned 60% for the beneficiaries of the Will. There may be some leaway here as it would depend on the new property value. It sounds as if you need legal representation

You cannot register interests under trusts at H M Land Registry. In fact it is specifically prohibited by section 33 of the 2002 Act -

33. No notice may be entered in the register in respect of any of the following— 1. (a) an interest under—(i) a trust of land, …

In such a case a Form A restriction is required but no other notice nor restriction (such as one requiring the consent of a beneficiary to any disposition) is permissible.

Clifford Payton
Alpha Court Chambers

When a Will is drawn and the circumstances that eventuated in this query are reasonably foreseeable there should probably be detailed provision about the life tenant ceasing to occupy, including the acquisition of a replacement property, and perhaps the imposition of a consent requirement to any disposal/replacement. The latter can be protected at the Land Registry by a restriction N.

Whose consent should be required and on what basis will often justify careful thought, including successor provisions in the event of death or incapacity of a natural person. It would probably be prudent to exclude the consultation obligation in s11 TLATA 1996.

The choice of original trustees, and their successor arrangements, is a primary consideration. If the surviving spouse and a remainderman are the original trustees (and the power to appoint new trustees is carefully drawn so as not to facilitate any exercise which disturbs that balance) and a letter of wishes is reasonably detailed the rule that trustees must act by a majority plus restriction A will go quite a long way as a protective framework.

If future disagreement is a strong possibility it may be undesirable for the life tenant and any remainderman to be a trustee. If they are and either of them has the power to consent conferred on them the Will should clarify that the power is a personal power and not fiduciary. In principle I dislike provisions such as #9 of the STEP Standard Provisions requiring an Independent Trustee to act but it may be that something like it is desirable here, if only just as to the precise powers of the trustees as regards occupation of a trust property by a beneficiary who is also a trustee. (I always vary #9.4.2 to permit any two trustees to act whether appointed originally or as successors).

Where none of this has been anticipated, and while it may be desirable to wait a little longer, it may fairly soon be advisable to fire a warning shot about prospective litigation across the bows of the trustee(s). It would be surprising for the new trustee who is a solicitor to have undertaken that role without first ascertaining that no prior irregularities had occurred including in relation to his appointment and your Uncle’s retirement. Such a trustee is also under much greater practical compulsion (from the Solicitors’ Persecution Authority) to deal expeditiously and properly with your lawful requests than is any lay trustee. A solicitor is under a duty to make every effort to avoid potentially costly litigation. Depending on what reaction you get, and in what timescale, you may have to engage your own solicitor to encourage co-operation by polite thinly disguised menaces.

Jack Harper

Whist I am usually loath to disagree with Jack, I am discombobulated by his statement:

“the rule that trustees must act by a majority plus restriction A will go quite a long way as a protective framework”

Surely, the fundamental rule is that trustees must act unanimously, unless the trust instrument specifically provides otherwise. I believe that where both the life tenant and (a) remainderman are amongst the trustees it is the fact the trustees need to act unanimously that provides the protective framework.

Having been involved in a trust corporation, I have generally discouraged the adoption of majority decision making for trustees, especially where there is a professional trustee, as they could be outvoted on matters which breach trust law or any of the many regulations or other legal impositions placed on trustees. In such situations, the professional cannot safely either just retire or turn a blind eye.

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

Apologies to Paul and all. My intention was to indeed to positively assert that the general rule is unanimity as regards the exercise of trustee powers so that if LT and R are the two trustees a power of sale of a trust property occupied by LT could effectively be vetoed by R. However the power, being conferred on a trustee as trustee, is a fiduciary power. A trustee is not entirely free to exercise it as he wishes or indeed to decide not to exercise it.

A trustee must properly consider whether to exercise even an administrative power and if relevant must do so periodically. A trustee must not act capriciously. There is much established learning on this e.g.some 70 pages in Thomas on Powers. It is true that the Court is much more likely to intervene as regards an actual exercise than a refusal or simple failure to exercise. Thomas warns that where the relevant power is"coupled with a trust or duty (or cases of “mixed trust and power”) [the Court] will enforce the proper and timely exercise of that trust or power and might do so by removing the trustee who refused to join in". A court might be prepared to discern from a given trust document and contextual circumstances (e.g. the LT is the surviving spouse and the property was the matrimonial home, even in the absence of more explicit provisions or factors like a letter of wishes) that the power of disposal etc of the property shaded into a mixed trust and power. Where beneficiaries of a trust have different interests a trustee “ought to treat them fairly (or impartially, or with an even hand)”. R as trustee in considering the exercise must not do so to the total exclusion of the reasonable interests of LT. So the veto would not be impregnable, although it might prove a significant obstacle as the case law as to non-exercise or refusal is far from clear.

On the other hand a non-fiduciary power of consent vested in R (if he is not also a trustee) which he refuses to give is entirely beyond the intervention of the Court.

Jack Harper