A Trust gives power to appoint trustees to the settlor, who is also a trustee. There is a deed purporting to retire the settlor as trustee and appoint two others, in which it states that the power to appoint trustees
is vested in the retiring and two continuing trustees, wheras it is vested in the retiring trustee alone in her capacity as settlor.
Would members agree it is reasonable to take this as a valid appointment of trustees on the basis that one of those who appoints the new trustees is the settlor, albeit she has power alone to do so in a different capacity?
lt is complicated by the fact that the settlor has now lost mental capacity, so cannot ratify what was done.
I would say that, in a case such as the one you refer to, the requirements of s 36(1) TA25 have been complied with. The person with power to appoint trustees has appointed a replacement trustee by writing.
I have come across this on a couple of occasions and, each time, Chancery counsel has recommended an application for rectification on the basis that whilst the Appointor’s intention is clear the route adopted is specifically excluded by the trust instrument.
I suggest those who drafted the deed of appointment be advised to put their insurers on notice, although you might want to obtain counsel’s opinion beforehand to share with them in support your reasoning.