All, I wonder if you can help?
A colleague has been instructed by the trustees of a private pension fund in respect of a property related matter. One of the trustees of the pension trust has lost mental capacity. An LPA has been registered for that trustee.
There is nothing in the trust documentation which says what is to happen if one of the trustees loses mental capacity.
The pension trust owns freehold property registered at the Land Registry. Four of the pension trustees are the registered proprietors of the main property asset. The incapacitated trustee is one of them and it is this property asset which my colleague has been instructed upon.
The question is:
I am not sure whether it can be said that the incapacitated trustee (who does receive an income from the pension trust) can therefore be said to have a beneficial interest in the land for the purposes of s1 Trustee Delegation Act on the basis he receives an income from it (although indirectly)? I am yet to establish whether this income is paid at the discretion of the pension trustees or whether they are entitled to a set amount of income.
If a beneficial ownership can be established then my understanding is that the attorney can sign on the trustee’s behalf.
If the above is not sufficient for the purpose of “beneficial ownership” then it may be a case of having to remove the incapacitated trustee altogether. As mentioned earlier, there is nothing in the trust documentation which says what is to happen in this situation. Am I correct therefore that under s36 TA 1925 the remaining trustees can replace the incapacitated trustee by Deed? Would such Deed be sufficient for the Land Registry to remove the trustees name from the Title?
If you made it through this far but don’t have any pearls of wisdom……perhaps you have details of who we could obtain counsel’s opinion?