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August 2003

What to do when Trustees can't agree

Utilising the Trustee Act 1956

Trustees are appointed under a person’s will, or under a deed of trust. Unless otherwise stated in the will or deed, trustees must act unanimously. What options are available to trustees if they cannot agree on a matter?

Often the result of the trustees’ failure to agree on a course of action is that the status quo prevails. If that inactivity constitutes a breach of trust the Court may intervene, but if it does not, the Court has no right to intervene.

Court Relief

Fortunately, there may be relief for trustees under section 66 of the Trustee Act 1956 (“the Act”). Under that section any trustee may apply to the Court for directions concerning any trust property or the exercise of any power vested in the trustees. Section 51 of the Act allows the Court to appoint a new trustee or trustees, either in substitution for or in addition to any existing trustee or trustees.

Life Tenancy Under a Will

Trustee disputes sometimes arise when the life tenant under a will and one or more of the residuary beneficiaries are appointed executors and trustees. A life tenant is someone who has an interest in an asset under a will during their lifetime, but on their death the asset will revert to other beneficiaries – called residuary beneficiaries.

That was the case in Rolton v Hudson. Mr Rolton (the life tenant) was appointed a trustee of Mr Hudson Snr’s will and was entitled to occupy a house owned by him and Mr Hudson Snr. The other trustee was the deceased’s son (Mr Hudson Jnr) who was one of the beneficiaries who would inherit the house on Mr Rolton’s death.

The terms of the will allowed Mr Rolton to request the trustees to sell the house and buy a substitute property. He and Mr Hudson Jnr could not agree on the value of the property and an offer which Mr Rolton considered reasonable was not accepted by Mr Hudson Jnr. After four years, no progress had been made.

Mr Rolton applied to the Court for directions under section 66, or alternatively an order under section 51 appointing a new trustee in substitution for the existing trustees. As the matter progressed, Mr Rolton concentrated on the latter order which was eventually granted and a lawyer appointed as the sole trustee in the estate.

Balance of Power

An important consideration then when considering the appointment of executors and trustees under the terms of a life-interest will, is to ensure that there is a balance of power between the parties. While this may lead to a deadlock in decision-making and an application to the Court under section 66, it does avoid the situation of one person having a dominant position over another.

Conclusion

It is not uncommon for trustees under a Trust to be in dispute at some time. The trustees must take care to consider the interests of the beneficiaries and the maintenance of the Trust fund as paramount and not to let personal issues cloud their judgment in their capacity as trustees. Trustees have the ability to make application to the Court under section 66 to resolve a dispute, or to have themselves replaced as trustees under section 51 of the Act.