The appointment of replacement or additional trustees

The need for new appointments

Appointment of additional trustees

It may be necessary or beneficial for the number of original trustees appointed by the settlor to be increased by the appointment of additional trustees. This may be because of the workload that the trustees are experiencing or for simple reasons of convenience. In the case of land, if the settlor has created a trust for sale with a single trustee it may be necessary to appoint at least one additional trustee so that, if the land is sold, the purchaser can gain the benefit of overreaching.

Appointment of replacement trustees

It may be necessary to appoint new trustees as replacements for those who are no longer able to act as such, for example because of death or mental incapacity, or who have retired from the trust.

Removal of trustees

In some circumstances it may be necessary to remove a trustee from the trust against his will, for example if he proves to be incompetent or is frustrating the efficient exercise of the trust.

Power to appoint new trustees

Having recognized that there may be a need in some circumstances to appoint new trustees, the central question is how such appointments can be made: i.e. who has the power to select and appoint new trustees, and in what circumstances can such powers be exercised? Although there would be advantages in making a thematic survey of the reasons why new appointments may need to be made and the powers that could be used to make them better, because of an overlap between the scope of the various powers it is better to consider the different jurisdictions that enable the appointment of new trustees.

Express powers

In keeping with the fundamental philosophy that, as far as possible the settlor’s intentions will be carried out, the trust deed may contain an express power authorizing the appointment of new trustees. Such a power will be strictly construed. There is some question whether the donee of such a power can appoint himself as trustee of the settlement. In Re Skeats’s Settlement, (1889) 42 Ch D 522, a trust contained an express power granting certain persons the power to appoint ‘any other person’ to be trustee. They exercised the power to appoint themselves. Kay J held that this was invalid since the power was fiduciary in character:

‘The universal rule  is that a man should not be judge in his own cause; that he should not decide that he is the best possible person, and say that he ought to be the trustee. Naturally no human being can be imagined who would not have some bias one way or the other as to his own personal fitness, and to appoint himself among other people, or excluding them to appoint himself would certainly be an improper exercise of any power of selection of a fiduciary character such as this is. In my opinion it would be extremely improper for a person who has a power to appoint or select new trustees to appoint or select himself…’ Ibid at 527.

This principle was followed by Kekewich J in Re Newen, [1894] 2 Ch 297, but was doubted by Buckley J in Montefiore v Guedalla, [1903] 2 Ch 723, where he stated that:

‘On the cases, I am clearly of opinion that it has not been laid down that the appointors are outside the class who can be appointed, although it has been said, and it is a very salutary rule, than an appointer ought not, save in exceptional circumstances, to appoint himself,’ [1903] 2 Ch 723 at 725.

Statutory powers

There are three important statutory provisions granting the power of appointment of new trustees:

  1. Trustee Act 1925, s 36. This section provides for the appointment of new trustees in a wide range of circumstances by persons either nominated in the trust deed by the settlor, or, in the absence of any such nomination, by the persons provided for by the section. The intervention of the court is not required for appointment made under the power contained in s 36.

  2. Trustee Act 1925, s 41. This section grants the court a wide power to appoint new trustees either in addition to or in substitution for present trustees. The power is discretionary and may be exercised whenever the court considers it is expedient

  3. Trusts of Land and Appointment of Trustees Act 1996, ss 19 and 20. The Trusts of Land and Appointment of Trustees Act 1996 has introduced a new statutory right enabling the beneficiaries of a trust to direct the compulsory retirement of a trustee. Section 19(2)(b) also grants the beneficiaries the right to direct the appointment of new trustees and s 20 provides for the appointment of a replacement trustee where a trustee is mentally incapable of acting and there is no person willing and able to appoint a replacement under s 36(1) of the Trustee Act 1925.