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In re Tempest [L R] 1 Ch App 485

The discretion which the court exercises in appointing new trustees is not a mere arbitrary discretion, but is to be exercised in accordance with certain principles. Among them are the following:

a) In selecting a person for the office, the court will have regard to the wishes of the author of the trust, expressed in, or plainly deduced from, the instrument creating it.

b) The court will not appoint a person with a view to the interest of some of the beneficiaries, in opposition to the interest of others.

c) The court will have regard to the question whether the appointment will promote or impede the execution of the trust.

The mere fact of the continuing trustee refusing to act with the proposed new trustee would not be sufficient to induce the court to refrain from appointing him. For this would be to give the continuing or surviving trustee a veto upon the appointment of the new trustee. In such a case, it must be the duty of the Court to inquire and ascertain whether the objection of the surviving or continuing trustee is well founded or not, and to act or refuse to act upon it accordingly.

Miller v Cameron (1936) 54 CLR 572

The jurisdiction of the court to remove is exercised with a view:

a) to the interest of the beneficiaries;

b) to the security of the trust property; and

c) to an efficient and satisfactory execution of the trusts and a faithful and sound exercise of the powers conferred upon the trustee.

In deciding to remove a trustee, the court forms a judgment based upon considerations to show that the welfare of the beneficiaries is opposed to his continued occupation of the office. Such a judgment must be largely discretionary.

It is fundamental that a trustee must carry out the terms of the trust. If he fails to do so, he may be removed as trustees by a court even if no harm has been done to the beneficiaries or to the trust.