Part 1Trusts
Chapter 1Appointment, assumption, resignation, removal and discharge of trustees
Resignation and removal
I16Resignation of incapable trustee
1
Where a trustee is incapable, the power in section 5(1) may be exercised by the trustee’s guardian (“G”) on behalf of the trustee (and in such a case, the resignation will, for the purposes of this Act, be treated as a resignation by the trustee).
2
But where subsection (3) applies, G may do so only after—
a
an additional trustee is assumed under section 3,
b
an additional trustee is appointed—
i
under section 1 or 2, or
ii
by G, or
c
a judicial factor is appointed to administer the trust.
3
This subsection applies where—
a
the incapable trustee is a sole trustee, or
b
in G’s opinion, no other trustee exists who is both capable and traceable.
4
Any resignation given by G on behalf of the incapable trustee in breach of subsection (2) is of no effect.
5
Section 4(2) (general conveyance of trust property) applies to an appointment of a trustee by G under subsection (2)(b)(ii) as it applies to an appointment of a trustee under section 1(1)(b) or 2(1).
6
Section 5(5) applies to a resignation given by G on behalf of an incapable trustee in accordance with this section as it applies to a resignation given by a trustee under section 5.
7
This section applies—
a
irrespective of when the trust was created, but
b
only as respects a resignation given after this section comes into force.