the person or persons nominated for the purpose of appointing new trustees by the instrument (if any) creating the trust; or if there is no such person or no such person able and willing to act, then the surviving or continuing trustees or trustee for the time being, or the personal representatives of the last surviving or continuing trustee- Power of the Court to remove a trustee - Bankruptcy – Bankruptcy usually means the immediate removal of a trustee, however the Court will not always remove a bankrupt trustee when called upon to do so in exercising its statutory inherent jurisdiction per Re Matheson must be satisfied otherwise wont remove – Where the Court is satisfied the tustees bankruptcy will not interfere with the performance of the trust then they may not remove the relevant trustee. relies on person qualified to appoint trustee – The difference between appointment of new trustees outside of Court and an order for removal of a trustee by the Court seems to be that, if the person qualified to appoint a new trustee forms the genuine belief that the trustee is unfit to act, the Court will not interfere. s48 Trustee Act 1958 (Vic) – The Court can appoint new trustees under this section of the act it is found inexpedient difficult or impracticable so to do ‘if without the assistance of the Court’ (1886) LR 1 Ch App 485 - Re Tempest One of two trustees nominated in the will had died during the deceased lifetime. The deceased will had provided that 2 of the existing trustees had the right to appoint a new trustee, but they could not agree. The beneficiaries wanted Petrie. Court provided 3 tests the Court will have regard to the wishes ‘First, of the persons by whom the trust has been created, if expressed in the instrument creating the trust, or clearly to be collected from it’ is that the will not appoint a ‘Second, person to be a trustee with a view to the interests of some of the persons interested under the trust in opposition either to the wishes of the testator or to the interests of other beneficiaries’
the person or persons nominated for the purpose of appointing new trustees by the instrument (if any) creating the trust; or if there is no such person or no such person able and willing to act, then the surviving or continuing trustees or trustee for the time being, or the personal representatives of the last surviving or continuing trustee- Power of the Court to remove a trustee - Bankruptcy – Bankruptcy usually means the immediate removal of a trustee, however the Court will not always remove a bankrupt trustee when called upon to do so in exercising its statutory inherent jurisdiction per Re Matheson must be satisfied otherwise wont remove – Where the Court is satisfied the tustees bankruptcy will not interfere with the performance of the trust then they may not remove the relevant trustee. relies on person qualified to appoint trustee – The difference between appointment of new trustees outside of Court and an order for removal of a trustee by the Court seems to be that, if the person qualified to appoint a new trustee forms the genuine belief that the trustee is unfit to act, the Court will not interfere. Trustee Act 1958 (Vic) – s48 The Court can appoint new trustees under this section of the act ‘if it is found inexpedient difficult or impracticable so to do without the assistance of the Court’ Re Tempest (1886) LR 1 Ch App 485 - One of two trustees nominated in the will had died during the deceased lifetime. The deceased will had provided that 2 of the existing trustees had the right to appoint a new trustee, but they could not agree. The beneficiaries wanted Petrie. Court provided 3 tests ‘First, the Court will have regard to the wishes of the persons by whom the trust has been created, if expressed in the instrument creating the trust, or clearly to be collected from it’ ‘Second, is that the will not appoint a person to be a trustee with a view to the interests of some of the persons interested under the trust in opposition either to the wishes of the testator or to the interests of other beneficiaries’
Trusts_Summary.docx