When a Trust is included in a Will, clients will often wish for their surviving spouse to act as the sole Trustee. Whilst this is not an issue in most Trusts it can cause complications where the Trust includes land (such as a PPT).
A sole Trustee is unable to give a valid receipt any capital money arising from land. This means that a sole Trustee of land is unable to deal with any income from a property or sell the property (for example if they wished to downsize under the terms of a PPT).
The Trustee is able to appoint further Trustees themselves, however it should be noted that Testator does not get a say on who this Trustee is and it could indeed be someone who the Testator would not wish to act.
This restriction does not apply to Trust Corporations; they are able to act solely without any issues.
Where a Trust includes power to advance capital (such as a FLIT, Flexible IPDI or a Discretionary Trust), it is advisable to appoint either a Trust Corporation or multiple Trustees as a precaution to prevent a survivor potentially advancing large amounts of the Trust capital to themselves.
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2 comments
Iain Mackay
2 September 2016 at 2:37 pm
Is it negligent not to advise clients to appoint more than one executor where land is involved, or does the ability of the sole executor to appoint another remove such an obligation?
WillPack
27 September 2016 at 5:11 pm
Do you mean trustees? There is only a minimum requirement of two trustees where there is a trust of land; a sole executor does not encounter the same problems when dealing with property.
While it isn’t negligent not to advise a testator to appoint more than one trustee where it will be required, a testator should be informed nonetheless. This allows them the opportunity to ensure that all trustees appointed are people who they trust and who have been selected by them.
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