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Appointment of trustee

The court has an inherent power to appoint trustees as part of its supervisory jurisdiction over trusts which is supplemented by section 45 of the Trustee Act 1949. Under this section, the court may appoint whenever it is expedient that an appointment should be made and it is inexpedient, difficult or impracticable to bring this about without the assistance of the court. Application to the court may be made by a beneficiary or by a trustee, but if it is possible to appoint under a power in the trust instrument. If there is some person having power to appoint and seeking to exercise that power in good faith, the court will not interfere even if the proposed appointment is not one which it would itself have made.

The court’s assistance may properly be sought when no one has power to appoint, or no one is willing and able to exercise it, or where there is some doubt about whether the power has become exercisable. Recourse to the court may be the only way of replacing elderly or sick trustees who have become incapable of acting for the trust.

In Re Phelp’s ST (1885) 31 ChD 351, where the sole trustees was 85 years old, deaf, and failing in intellect, or of meeting the case where only person having power to appoint is too old or ill, or too young, to be able to exercise it.

The court will not, make an appointment which favours the interest of certain beneficiaries above others, nor will it willingly appoint against the known wishes of the settler.

In Re Tempest (1866) LR 1 Ch App 485 a trustee had predeceased the testator, and there was strong disagreement between the surviving trustee and a fiction among the beneficiaries over who should replace him. It was clear that the surviving trustee would be unwilling to act with the person appointed by the court at first instance.

Turner LJ considered that it would be going too far to say that a court would refuse to appoint a person with whom the existing trustees refuse to act since that would amount to giving them a veto. The court should inquire whether the objection is well founded ad act accordingly. Regard will be had to whether a proposed appointment will promote or impede the execution of the trust.

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