We have been instructed by a client who we believe is the sole surviving trustee of her late father’s Will trust. The other trustee appointed by the Will passed away and a trustee added by deed after the father passed away a year or so ago.
A solicitor has come forward claiming that he was also appointed as a trustee. However, neither we, the client nor the solicitor can find any written deed of appointment to confirm this.
Our client seems to recall that a few years ago she asked the solicitor whether he would be prepared to come on board as a trustee but she is adamant that this was never formalised nor does she want him on board.
My question is therefore whether in absence of a written deed of appointment someone is able to claim that they have been appointed as a trustee and, if a verbal appointment has any standing in law.
Hutchinson Legal & Associates Limited
My interpretation of s.36(1) Trustee Act 1925 is that the appointment of a new trustee should be in writing, and cannot merely be verbal. Such an appointment is usually made by deed nowadays which, although having many benefits, is not absolutely essential.
In her commentary on the section in Trusts and Estates Law Handbook, Penelope Reed QC states: “The appointment of a new trustee should be in writing …” indicating, I believe, that the word “may” immediately before “in writing” indicates that whilst the use of the power is permissive, the exercise of the power other than in writing is not.
Perhaps a quick opinion from Miss Reed might be sufficient to enable your client to see off the purported trustee.
Paul Saunders FCIB TEP
Independent Trust Consultant
Providing support and advice to fellow professionals
Not sure that it helps but Bingham v Clanmorris (1828) 2 Moll 253 suggests that it may be possible to disclaim the office of trustee orally.
An appointment of trustee under s. 36(1) trustee act 1925 must be in writing but need not be by deed.