Trustee Act 1925

Part IVE+W+N.I. Powers of the Court

Appointment of new TrusteesE+W

41 Power of court to appoint new trustees.E+W

(1)The court may, whenever it is expedient to appoint a new trustee or new trustees, and it is found inexpedient difficult or impracticable so to do without the assistance of the court, make an order appointing a new trustee or new trustees either in substitution for or in addition to any existing trustee or trustees, or although there is no existing trustee.

In particular and without prejudice to the generality of the foregoing provision, the court may make an order appointing a new trustee in substitution for a trustee who . . . F1 [F2lacks capacity to exercise][F3his functions as trustee], or is a bankrupt, or is a corporation which is in liquidation or has been dissolved.

F4(2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

(3)An order under this section, and any consequential vesting order or conveyance, shall not operate further or otherwise as a discharge to any former or continuing trustee than an appointment of new trustees under any power for that purpose contained in any instrument would have operated.

(4)Nothing in this section gives power to appoint an executor or administrator.

42 Power to authorise remuneration.E+W

Where the court appoints a corporation, other than the Public Trustee, to be a trustee either solely or jointly with another person, the court may authorise the corporation to charge such remuneration for its services as trustee as the court may think fit.

43 Powers of new trustee appointed by the court.E+W

Every trustee appointed by a court of competent jurisdiction shall, as well before as after the trust property becomes by law, or by assurance, or otherwise, vested in him, have the same powers, authorities, and discretions, and may in all respects act as if he had been originally appointed a trustee by the instrument, if any, creating the trust.

Vesting OrdersE+W+N.I.

44 Vesting orders of land.E+W

In any of the following cases, namely:—

(i)Where the court appoints or has appointed a trustee, or where a trustee has been appointed out of court under any statutory or express power;

(ii)Where a trustee entitled to or possessed of any land or interest therein, whether by way of mortgage or otherwise, or entitled to a contingent right therein, either solely or jointly with any other person—

(a)is under disability; or

(b)is out of the jurisdiction of the High Court; or

(c)cannot be found, or, being a corporation, has been dissolved;

(iii)Where it is uncertain who was the survivor of two or more trustees jointly entitled to or possessed of any interest in land;

(iv)Where it is uncertain whether the last trustee known to have been entitled to or possessed of any interest in land is living or dead;

(v)Where there is no personal representative of a deceased trustee who was entitled to or possessed of any interest in land, or where it is uncertain who is the personal representative of a deceased trustee who was entitled to or possessed of any interest in land;

(vi)Where a trustee jointly or solely entitled to or possessed of any interest in land, or entitled to a contingent right therein, has been required, by or on behalf of a person entitled to require a conveyance of the land or interest or a release of the right, to convey the land or interest or to release the right, and has wilfully refused or neglected to convey the land or interest or release the right for twenty-eight days after the date of the requirement;

(vii)Where land or any interest therein is vested in a trustee whether by way of mortgage or otherwise, and it appears to the court to be expedient;

the court may make an order (in this Act called a vesting order) vesting the land or interest therein in any such person in any such manner and for any such estate or interest as the court may direct, or releasing or disposing of the contingent right to such person as the court may direct:

(a)Where the order is consequential on the appointment of a trustee the land or interest therein shall be vested for such estate as the court may direct in the persons who on the appointment are the trustees; and

(b)Where the order relates to a trustee entitled or formerly entitled jointly with another person, and such trustee is under disability or out of the jurisdiction of the High Court or cannot be found, or being a corporation has been dissolved, the land interest or right shall be vested in such other person who remains entitled, either alone or with any other person the court may appoint.

45 Orders as to contingent rights of unborn persons.E+W

Where any interest in land is subject to a contingent right in an unborn person or class of unborn persons who, on coming into existence would, in respect thereof, become entitled to or possessed of that interest on any trust, the court may make an order releasing the land or interest therein from the contingent right, or may make an order vesting in any person the estate or interest to or of which the unborn person or class of unborn persons would, on coming into existence, be entitled or possessed in the land.

46 Vesting order in place of conveyance by infant mortagee.E+W

Where any person entitled to or possessed of any interest in land, or entitled to a contingent right in land, by way of security for money, is an infant, the court may make an order vesting or releasing or disposing of the interest in the land or the right in like manner as in the case of a trustee under disability.

47 Vesting order consequential on order for sale or mortgage of land.U.K.

Where any court gives a judgment or makes an order directing the sale or mortgage of any land, every person who is entitled to or possessed of any interest in the land, or entitled to a contingent right therein, and is a party to the action or proceeding in which the judgment or order is given or made or is otherwise bound by the judgment or order, shall be deemed to be so entitled or possessed, as the case may be, as a trustee for the purposes of this Act, and the court may, if it thinks expedient, make an order vesting the land or any part thereof for such estate or interest as that court thinks fit in the purchaser or mortgagee or in any other person:

48 Vesting order consequential on judgment for specific performance, &c.E+W

Where a judgment is given for the specific performance of a contract concerning any interest in land, or for sale or exchange of any interest in land, or generally where any judgment is given for the conveyance of any interest in land either in cases arising out of the doctrine of election or otherwise, the court may declare—

(a)that any of the parties to the action are trustees of any interest in the land or any part thereof within the meaning of this Act; or

(b)that the interests of unborn persons who might claim under any party to the action, or under the will or voluntary settlement of any deceased person who was during his lifetime a party to the contract or transaction concerning which the judgment is given, are the interests of persons who, on coming into existence, would be trustees within the meaning of this Act;

and thereupon the court may make a vesting order relating to the rights of those persons, born and unborn, as if they had been trustees.

49 Effect of vesting order.E+W

A vesting order under any of the foregoing provisions shall in the case of a vesting order consequential on the appointment of a trustee, have the same effect—

(a)as if the persons who before the appointment were the trustees, if any, had duly executed all proper conveyances of the land for such estate or interest as the court directs; or

(b)if there is no such person, or no such person of full capacity, as if such person had existed and been of full capacity and had duly executed all proper conveyances of the land for such estate or interest as the court directs;

and shall in every other case have the same effect as if the trustee or other person or description or class of persons to whose rights or supposed rights the said provisions respectively relate had been an ascertained and existing person of full capacity, and had executed a conveyance or release to the effect intended by the order.

50 Power to appoint person to convey.E+W

In all cases where a vesting order can be made under any of the foregoing provisions, the court may, if it is more convenient, appoint a person to convey the land or any interest therein or release the contingent right, and a conveyance or release by that person in conformity with the order shall have the same effect as an order under the appropriate provision.

51 Vesting orders as to stock and things in action.E+W

(1)In any of the following cases, namely:—

(i)Where the court appoints or has appointed a trustee, or where a trustee has been appointed out of court under any statutory or express power;

(ii)Where a trustee entitled, whether by way of mortgage or otherwise, alone or jointly with another person to stock or to a thing in action—

(a)is under disability; or

(b)is out of the jurisdiction of the High Court; or

(c)cannot be found, or, being a corporation, has been dissolved; or

(d)neglects or refuses to transfer stock or receive the dividends or income thereof, or to sue for or recover a thing in action, according to the direction of the person absolutely entitled thereto for twenty-eight days next after a request in writing has been made to him by the person so entitled; or

(e)neglects or refuses to transfer stock or receive the dividends or income thereof, or to sue for or recover a thing in action for twenty-eight days next after an order of the court for that purpose has been served on him;

(iii)Where it is uncertain whether a trustee entitled alone or jointly with another person to stock or to a thing in action is alive or dead;

(iv)Where stock is standing in the name of a deceased person whose personal representative is under disability;

(v)Where stock or a thing in action is vested in a trustee whether by way of mortgage or otherwise and it appears to the court to be expedient;

the court may make an order vesting the right to transfer or call for a transfer of stock, or to receive the dividends or income thereof, or to sue for or recover the thing in action, in any such person as the court may appoint:

(a)Where the order is consequential on the appointment of a trustee, the right shall be vested in the persons who, on the appointment, are the trustees; and

(b)Where the person whose right is dealt with by the order was entitled jointly with another person, the right shall be vested in that last-mentioned person either alone or jointly with any other person whom the court may appoint.

(2)In all cases where a vesting order can be made under this section, the court may, if it is more convenient, appoint some proper person to make or join in making the transfer:

(3)The person in whom the right to transfer or call for the transfer of any stock is vested by an order of the court under this Act, may transfer the stock to himself or any other person, according to the order, and the [F5Registrar of Government Stock and any company] shall obey every order under this section according to its tenor.

(4)After notice in writing of an order under this section it shall not be lawful for the [F6Registrar of Government Stock or any company]to transfer any stock to which the order relates or to pay any dividends thereon except in accordance with the order.

(5)The court may make declarations and give directions concerning the manner in which the right to transfer any stock or thing in action vested under the provisions of this Act is to be exercised.

(6)The provisions of this Act as to vesting orders shall apply to shares in ships registered under the [F7Merchant Shipping Act 1995] as if they were stock.

52 Vesting orders of charity property.E+W

The powers conferred by this Act as to vesting orders may be exercised for vesting any interest in land, stock, or thing in action in any trustee of a charity or society over which the court would have jurisdiction upon action duly instituted, whether the appointment of the trustee was made by instrument under a power or by the court under its general or statutory jurisdiction.

53 Vesting orders in relation to infant’s beneficial interests.E+W

Where an infant is beneficially entitled to any property the court may, with a view to the application of the capital or income thereof for the maintenance, education, or benefit of the infant, make an order—

(a)appointing a person to convey such property; or

(b)in the case of stock, or a thing in action, vesting in any person the right to transfer or call for a transfer of such stock, or to receive the dividends or income thereof, or to sue for and recover such thing in action, upon such terms as the court may think fit.

[F854 Jurisdiction in regard to mental patients.E+W

[F9(1)Subject to subsection (2), the Court of Protection may not make an order, or give a direction or authority, in relation to a person who lacks capacity to exercise his functions as trustee, if the High Court may make an order to that effect under this Act.]

(2)[F10Where a person lacks capacity to exercise his functions as a trustee and a deputy is appointed for him by the Court of Protection or an application for the appointment of a deputy ]has been made but not determined, then, except as respects a trust which is subject to an order for administration made by the High Court, [F11the Court of Protection ] shall have concurrent jurisdiction with the High Court in relation to—

(a)mortgaged property of which [F12the person concerned ]has become a trustee merely by reason of the mortgage having been paid off;

(b)matters consequent on the making of provision by [F11the Court of Protection ] for the exercise of a power of appointing trustees or retiring from a trust;

(c)matters consequent on the making of provision by [F11the Court of Protection ] for the carrying out of any contract entered into by [F12the person concerned ];

(d)property to some interest in which [F12the person concerned ]is beneficially entitled but which, or some interest in which, is held by [F12the person concerned ] under an express, implied or constructive trust.

The Lord Chancellor may make rules with respect to the exercise of the jurisdiction referred to in this subsection.

F13(3)]. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

55 Orders made upon certain allegations to be conclusive evidence.E+W+N.I.

Where a vesting order is made as to any land under this Act or under[F14 sections 15 to 20 of the Mental Capacity Act 2005 or any corresponding provisions having effect in Northern Ireland ], founded on an allegation of any of the following matters namely—

[F15(a)that a trustee or mortgagee lacks capacity in relation to the matter in question;]

(b)that a trustee or mortgagee or the personal representative of or other person deriving title under a trustee or mortgagee is out of the jurisdiction of the High Court or cannot be found, or being a corporation has been dissolved; or

(c)that it is uncertain which of two or more trustees, or which of two or more persons interested in a mortgage, was the survivor; or

(d)that it is uncertain whether the last trustee or the personal representative of or other person deriving title under a trustee or mortgagee, or the last surviving person interested in a mortgage is living or dead; or

(e)that any trustee or mortgagee has died intestate without leaving a person beneficially interested under the intestacy or has died and it is not known who is his personal representative or the person interested;

the fact that the order has been so made shall be conclusive evidence of the matter so alleged in any court upon any question as to the validity of the order; but this section does not prevent the court from directing a reconveyance or surrender or the payment of costs occasioned by any such order if improperly obtained.

56 Application of vesting order to property out of England.E+W+N.I.

The powers of the court to make vesting orders under this Act shall extend to all property in any part of His Majesty’s dominions except Scotland.

Jurisdiction to make other OrdersE+W

57 Power of court to authorise dealings with trust property. E+W

(1)Where in the management or administration of any property vested in trustees, any sale, lease, mortgage, surrender, release, or other disposition, or any purchase, investment, acquisition, expenditure or other transaction, is in the opinion of the court expedient, but the same cannot be effected by reason of the absence of any power for that purpose vested in the trustees by the trust instrument, if any, or by law, the court may by order confer upon the trustees, either generally or in any particular instance, the necessary power for the purpose, on such terms, and subject to such provisions and conditions, if any, as the court may think fit and may direct in what manner any money authorised to be expended, and the costs of any transaction, are to be paid or borne as between capital and income.

(2)The court may, from time to time, rescind or vary any order made under this section, or may make any new or further order.

(3)An application to the court under this section may be made by the trustees, or by any of them, or by any person beneficially interested under the trust.

(4)This section does not apply to trustees of a settlement for the purposes of the M1Settled Land Act, 1925.

58 Persons entitled to apply for orders.E+W

(1)An order under this Act for the appointment of a new trustee or concerning any interest in land, stock, or thing in action subject to a trust, may be made on the application of any person beneficially interested in the land, stock, or thing in action, whether under disability or not, or on the application of any person duly appointed trustee thereof.

(2)An order under this Act concerning any interest in land, stock, or thing in action subject to a mortgage may be made on the application of any person beneficially interested in the equity of redemption, whether under disability or not, or of any person interested in the money secured by the mortgage.

59 Power to give judgment in absence of a trustee.E+W

Where in any action the court is satisfied that diligent search has been made for any person who, in the character of trustee, is made a defendant in any action, to serve him with a process of the court, and that he cannot be found, the court may hear and determine the action and give judgment therein against that person in his character of a trustee as if he had been duly served, or had entered an appearance in the action, and had also appeared by his counsel and solicitor at the hearing, but without prejudice to any interest he may have in the matters in question in the action in any other character.

60 Power to charge costs on trust estate.E+W

The court may order the costs and expenses of and incident to any application for an order appointing a new trustee, or for a vesting order, or of and incident to any such order, or any conveyance or transfer in pursuance thereof, to be raised and paid out of the property in respect whereof the same is made, or out of the income thereof, or to be borne and paid in such manner and by such persons as to the court may seem just.

61 Power to relieve trustee from personal liability.E+W

If it appears to the court that a trustee, whether appointed by the court or otherwise, is or may be personally liable for any breach of trust, whether the transaction alleged to be a breach of trust occurred before or after the commencement of this Act, but has acted honestly and reasonably, and ought fairly to be excused for the breach of trust and for omitting to obtain the directions of the court in the matter in which he committed such breach, then the court may relieve him either wholly or partly from personal liability for the same.

62 Power to make beneficiary indemnify for breach of trust.E+W

(1)Where a trustee commits a breach of trust at the instigation or request or with the consent in writing of a beneficiary, the court may, if it thinks fit, . . . F16, make such order as to the court seems just, for impounding all or any part of the interest of the beneficiary in the trust estate by way of indemnity to the trustee or persons claiming through him.

(2)This section applies to breaches of trust committed as well before as after the commencement of this Act.

Payment into CourtE+W

63 Payment into court by trustees. E+W

(1)Trustees, or the majority of trustees, having in their hands or under their control money or securities belonging to a trust, may pay the same into court; . . . F17

(2)The receipt or certificate of the proper officer shall be a sufficient discharge to trustees for the money or securities so paid into court.

(3)Where money or securities are vested in any persons as trustees, and the majority are desirous of paying the same into court, but the concurrence of the other or others cannot be obtained, the court may order the payment into court to be made by the majority without the concurrence of the other or others.

(4)Where any such money or securities are deposited with any banker, broker, or other depositary, the court may order payment or delivery of the money or securities to the majority of the trustees for the purpose of payment into court.

(5)Every transfer payment and delivery made in pursuance of any such order shall be valid and take effect as if the same had been made on the authority or by the act of all the persons entitled to the money and securities so transferred, paid, or delivered.

[F1863A Jurisdiction of County Court. E+W

(1)The county court has jurisdiction under the following provisions where the amount or value of the trust estate or fund to be dealt with in the court does not exceed the county court limit—

• section 41;

• section 42;

• section 51;

• section 57;

• section 60;

• section 61;

• section 62.

(2)The county court has jurisdiction under the following provisions where the land or the interest or contingent right in land which is to be dealt with in the court forms part of a trust estate which does not exceed in amount or value the county court limit—

• section 44;

• section 45;

• section 46.

(3)The county court has jurisdiction—

(a)under sections 47 and 48 of this Act, where the judgment is given or order is made by the court;

(b)under sections 50 and 56, where a vesting order can be made by the court;

(c)under section 53, where the amount or value of the property to be dealt with in the court does not exceed the county court limit; and

(d)under section 63 (including power to receive payment of money or securities into court) where the money or securities to be paid into court do not exceed in amount or value the county court limit.

(4)Any reference to the court in section 59 of this Act includes a reference to the county court.

(5)In this section, in its application to any enactment, “the county court limit”means the amount for the time being specified by an Order in Council under section 145 of the County Courts Act 1984 as the county court limit for the purposes of that enactment (or, where no such Order in Council has been made, the corresponding limit specified by Order in Council under section 192 of the County Courts Act 1959).]