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Published online by Cambridge University Press: 02 January 2018
A trustee who has accepted trust obligations can retire from his trusteeship in four ways: (i) by virtue of the trust instrument which expressly or impliedly authorises him to do so; (ii) under s 36 of the Trustee Act 1925; (iii) under s 39 of the Trustee Act 1925 and (iv) under s 41 of the Trustee Act 1925, ie by permission of the court.
In regard to retirement under s 36 which provides for non-judicial appointment of new trustees, it is widely accepted that a trustee may so retire only by the valid appointment of another trustee in his place; retirement without replacement is only possible under s 39 and that would require consent to the retirement. An examination of the relevant case law reveals that it assumes rather than establishes the widely accepted view; but more importantly the effect of legislative changes culminating in the present s 36 removes the most probable reason for the view so that the formulation for it has, so to speak, disappeared.
1 See eg Jacob's Law of Trusts in Australia (5 edn(1986) 364–365.
2 Halsbury's Laws of England, Vol 48, (4 edn, (1984), paras 765772.
3 (1801) 6 Ves 455.
4 (1828) 4 Russ 272.
5 (1856) 22 Beav 248.
6 (1858) 4 K&J 87.
7 (1837) 1 Keen 581.
8 (1844) 1 Coll 530, 534.
9 The case of Forshaw v Higginson (1855) 20 Beav 485, 487is of more help. Although in the end the case involves judicial appointment, there was a privately drafted non-judicial appointment clause and in the course of his judgment Sir John Romilly MR would seem to accept that retirement must be with replacement.
10 (1849) 8 Hare 101.
11 [1896] 1 Ch 288.
14 (1846) 2 J & Lat 519, 533.
13 (1855) 20 Beav 485, 487.
14 In court applications, the rule of practice was to appoint a new trustee to replace the retiring one.
15 Because he was prevented from retiring. However, according to the Master of the Rolls: ‘If…on the application to the trustees to be discharged, his cestuis que trust had said, you must pay the costs of the appointment of the new trustees, which would have been the mere costs of endorsement on a deed, and he had refused to do that, I should not have supported the Plaintiff in instituting a suit, by giving him the costs thereby occasioned.
16 See Clark v Hoskins (1868) 37 LJ Ch 561, 566; Head v Could [ 1898] 2 Ch 250; also Reid v Reid(1862) 30 Beav 38.
17 (1886) 33 ChD 590.
18 Re Aston (1883) 23 ChD 217 - deferring to the decision of Cotton LJ in Re Collyer (1880) WN 131; Re Harford's Trusts (1879) 13 ChD 135.
19 See Emmet v Clark (1861) 2 Giff 32; Reid v Reid (1862) 20 Beav 388.
20 (1850) 4 De G & Sm 73.
21 See also sub-s (3).
22 By virtue of sub-s (3). In the present view, sub-s (3) introduces a new idea, ie a gloss on the principle in Courtenay v Courtenay. The right to retire is now curtailed where only one trustee or two trustees were originally appointed. The trustee can only retire provided he is replaced by at least two trustees. Sub-s (3) no longer appears in the present s 36.
23 There were older cases in which this occurred but up to Re Gardiner's Trust (1886) 33 ChD 590these were explained as exceptional cases.
24 [1896] 2 Ch 508.
25 See also Re Chctwynd's Settlements [1902] 1 Ch 692.
26 It might be thought that on principle the initiative should come from the retiring trustee to show that his retirement is justifiable. This might be supported on the ground that it may be hard to get a replacement to fill what normally is a gratuitous position. Nevertheless, even under a retirement only with replacement regime, there never was any duty on the part of the retiring trustee to procure his replacement. It must ever be remembered that a trustee acts gratuitously.
