Our firm are appointed trustees along with the brother of a deceased in a will trust. We renounced probate but there is a life interest trust in the will with a house therein (the wording of the will doesn’t provide for the trustees to just be the ones that take probate). We would like to disclaim the trust but are not sure whether we can do this with it involving a house since there would only be one remaining trustee.
Can we simply disclaim leaving the remaining and only trustee to appoint a new trustee or will we have to do a deed of retirement and appointment of new trustee instead with it involving a house?
Thanks
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I would strongly recommend using a DoRA
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I would (for avoidance of any doubt) enter into a Deed of Retirement and Appointment of Trustees, retiring firm as Trustees and appointing at least 1 other to act alongside the continuing Trustee.
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I’m intrigued by the postings on this subject – suggesting the use of a DoRA, under which the current trustee retires and appoints their replacement.
I believe that DoRA is a term more widely used in off-shore jurisdictions where it is usual for the settlor to have the power of appointment of trustees, so that the process of a trustee retiring and the settlor appointing a replacement is the “norm”.
In the situation under consideration, a deed of appointment and retirement (DART) is the appropriate instrument, as the incoming trustee must be appointed before the outgoing trustee can retire. If not, then the outgoing trustee will not be discharged and the incoming trustee will be a trustee de son tort.
I know some reading this will feel I am being pedantic, but we must also be aware that this forum is not read only by experienced practitioners but also by members of the public and our less experienced colleagues, who might form an incorrect (to their future clients detriment).
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
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If you want no responsibility in your capacity as trustees you should disclaim by deed of disclaimer, as this will be read back to the date of death.
If you retire and appoint it means you have accepted the trusteeship up to the point of retirement.
Simon Northcott
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I agree with Simon.
Patrick Moroney
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I believe there is a precedent in Tristram and Cootes.
Julian Cohen
Simons Rodkin
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