Validity of Deed of Appointment of Trustee

I have been approached by a client. When her husband died, his Will appointed her to be his sole Executix and, failing that, her son. A Grant of Probate was taken out by another firm in the son’s sole name, so I have assumed that she must have renounced. The son has since passed away.

Her husband’s Will set up a NRBDT. In subsequent documents prepared the same firm, my client is descibed as a Trustee, but I have no evidence of her actually being appointed as a Trustee and my thoughts are, if she renounced probate, she would no longer be a Trustee of the Trust. Is this correct?

Its relevance is that she has since appointed an additional Trustee (X) and she no longer wants him to be a Trustee. X is unlikely to agree to be removed and my thoughts were, if she was never actually appointed a s a trustee, then she would not have had the authority to have appointed X as an additional Trustee.

Am I correct, or am I barking up the wrong tree?

Many thanks.

Martyn Dixon
Harold Bell Infields & Co

I would say it depends upon the form of renunciation Martyn. You can renounce as Executor but will remain a Trustee unless stipulated in the renunciation.

The fact she is described as Trustee in correspondence seems to suggest she remained a Trustee?

Hope this helps

Kathy Melkerts
Melkerts Solicitors

I am of the same view as Katherine.

If the widow had done nothing since her husband’s death, there could be an argument that she had disclaimed the trusteeship. However, as she has exercised the trustee’s powers by, at the very least appointing a second trustee, I believe that she cannot deny that she has taken up the trustee role.

I suggest what needs to be looked at is why she now wishes to remove the very person she had appointed to act with her. Depending upon the circumstances, if she went to court, which trustee might the court be more likely to remove (if any)?

Paul Saunders FCIB TEP

Independent Trust Consultant

Providing support and advice to fellow professionals

I think the two functions - executor and trustee are quite separate. As regards the executorship she may not have renounced - she may have simply been notified by the son that he was applying and she may have power reserved to her. The firm who did the probate should be able to provide a copy of the deed of renunciation and (if there was one) it will have been filed with the probate registry when the application for probate was lodged.

Whether she has renounced or has power reserved to her is probably immaterial as far as the trusteeship is concerned. I would expect her to be expressly appointed as a trustee in the will. If she was not expressly appointed then she would not have power to appoint an additional trustee X. If the appointment was valid then your only solution would be an expensive and protracted application to Court to remove trustee x