Trustee without mental capacity

The Will appoints the surviving spouse and two children as executors and trustees

Residue is settled. Income to the surviving spouse for life with the remainder to children in equal shares.

On the testator’s death it is apparent that the surviving spouse lacks mental capacity.

She is an executor but need not take out the grant. Power can be reserved to her so the probate can proceed. However her appointment as trustee remains valid. I assume that:

  1. She is not automatically removed as a trustee simply because she lacks capacity.
  2. The two sound trustees cannot administer the trust in any way without her.
    3 . An application must be made to the Court of Protection for her to be removed as a trustee. So that either the two sound trustees can then act or alternatively a replacement for her can be appointed. I assume the application would take about six months and be expensive - £5,000 - £10,000.

Is this correct?

Vincent Oakley

Yes, I would say that is correct. she is beneficially entitled as the life tenant and so she cant be removed under s.36 TA without the CoP’s permission.

I have done such an application recently and it took several months to come through (from submission to the COP to receipt of order approx. 3 months). There’s the CoP fee of £400, I obtained an independent COP3 capacity assessment specific to this issue, witness statement from the continuing trustee (I was seeking replacement rather than removal as only 2 trustees). I did not ask for any order as to costs but the order specified that they were to be paid by the incapacitated trustee - I was expecting them to come from the trust so was a bit surprised by that.

Total costs were substantially less than £5,000 - probably more in the region of £2,000 to £3,000, obviously depending on how much your capacity assessment costs, geography and suchlike.

Rachel Saunders
Hart Law LLP