Q: My father was appointed a Trustee of a Will Trust set up by a wealthy aunt of his a few years ago. However, my father was struck down by coronavirus last summer and he has now been diagnosed with long COVID. He is really poorly and is prone to mithering about things, which does not help his condition. Now he is worrying about being able to fulfill his duty and responsibility to the Trust. I am wondering whether it would be possible for me to replace him as a Trustee and if so, what would I need to do?
A: The first thing to do is to review the Will Trust and establish whether there is any specific clause relating to who has power to appoint Trustees. If such a power exists, you will need to get a Deed drawn up stating that your father is retiring as a Trustee and that you are being appointed in his place as a new Trustee. The Deed must then be signed by the current Trustees, by anyone else authorised under the Will to appoint Trustees, and by you as the new Trustee.
If there is no such power of authority within the Will to appoint new Trustees, under the Trustee Act 1925 Section 36 it is possible where a Trustee wishes to be discharged from the Trust that the continuing Trustees and the Retiring Trustee can appoint a new Trustee by Deed.
Whilst there are forms available on the internet it would be advisable for you to seek legal advice from a solicitor regarding the preparation of a Deed of Retirement and Appointment of New Trustees, as this is the only sure way of concurring with the specific requirements of your relative’s Will Trust.
Article 11/05/2021
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