Who are the Trustees?

Trusts Discussion
1

I have come across a Will which contains a life interest trust over a 50% share of a property. One of the clauses goes on to say “for the purposes of this trust “my Trustees” shall mean X together with Y Solicitors LLP (or the partners at the date of death)”.

X lost capacity but made an LPA and the sale of the property has completed. The 50% of the sale proceeds now need to be invested to produce an income for X. The sale of the property focussed on the legal owners of the property and therefore the trust itself has not been considered until now.

1. Are the Trustees X and all of the partners of Y Solicitors LLP who were partners at the date of the testator’s death?

2. As X no longer has capacity, but has a beneficial interest in the trust (albeit it is no longer land but cash) is the only option here to ask the partners of Y Solicitors LLP to apply to the Court of Protection to appoint a new Trustee in place of X? (we have willing parties who are able to be appointed if so)

3. The partners of Y Solicitors would likely prefer to have as little involvement as necessary, but I see no other option here?

Many thanks

Rachel

2

I will use your numbering:

  1. If that is the exact wording (which I hope it isn’t) then yes it is X and all the partners at the date of death - regardless of whether they are still partners.

  2. You would usually need to check the wording of the Will or reply on S36 of the Wills act to remove the incapable trustee - however as you have mentioned that the trustee is entitled to trust property then you already suspect the difficulties if there is no specific wording allowing the incapable trustee to be removed in these circumstances - without any specific power a COP application will be necessary. (it is an s 36(9) application - at least it is not a S54 application as these take longer)

  3. There is none - the only thing to do is to offer to retire the incapable trustee, appoint new trustees and then retire the partners simultaneously.