Just Legal
“It is important
to always look
at the trust
deed first.”
(c) the trustee’s estate is sequestrated, liquidated or
placed under judicial management
(d) the trustee has been declared by a competent
court to be mentally ill or incapable of managing
ones own affairs or is detained as a patient in an
institution or as a State patient or
(e) the trustee fails to perform satisfactorily any
duty imposed upon one, by or under this Act, or
to comply with any lawful request of the Master.
Any person having an interest in the trust
property will have to bring an application to the
Master, specifically stating one or more of the above
mentioned reasons as grounds for their application.
It will be straightforward to provide proof of the first
four reasons in paragraphs (a) to (d) above as there
must be documentary evidence confirming this.
To remove a trustee on the grounds listed
in paragraph (e) above, will be more complex,
particularly where the grounds relate to a trustee
not performing ones required duties. Section 9 (1)
of the Act states that a trustee must act with the
care, diligence and skill which can be expected of a
person who manages the affairs of another, in the
performance of the trustees duties and the exercise
of the trustees powers.
Proof will have to be provided, for example that
the trustee does not attend trustee meetings, does
not respond to communications, does not act in
the best interests of the trust beneficiaries or fails
to co-operate in managing the trust property etc.
The Master can ask the alleged unwilling trustee to
respond to the allegations in order to form an overall
view of the matter. Supporting evidence will thus be
very important to have a trustee removed on these
grounds.
Just Property Magazine
It is possible to remove an unwilling trustee from
office. Trustees must always act in the best interests
of the trust beneficiaries. A trustee that is failing
in ones duty must be removed, when the trustee
is unwilling to step down. The correct approach in
the removal of this trustee must be followed. It is
advisable that legal advice be obtained before you
commence with any action in this regard.
Issue 7 2015
35