Commentary on Sections Part 1 – Trusts Appointment or assumption
15.Section 1 of the Act implements recommendation 1 in the Report on Trust Law. It is not a default provision and so cannot be overridden by the trust deed. Subsection (1) allows for the appointment of trustees by the court in two situations: first, where it is deemed necessary(4) for the administration of the trust or, secondly, where no capable trustee exists or is traceable. In the latter case, the court appointment also removes any existing trustee from office (subsection (3)). References to a trustee not being capable or traceable are to be read with sections 83 and 84 respectively. In section 81(1) and (3) of the Act, “the Court” is defined as meaning the Court of Session and the appropriate sheriff court. Section 1 of the Act replaces the common law (by subsection (2)) and the existing statute law (which is in section 22 of the Trusts (Scotland) Act 1921 (the “1921 Act”); this is repealed by section 87 and schedule 2). Section 1 applies to any trust within the meaning given by section 81(1), irrespective of when it was created (subsection (4)).
16.Section 2 of the Act implements recommendation 2 in the Report on Trust Law and puts the current common law rule into statute. Subsection (1) sets out the circumstances in which the truster (the person who creates a trust) may appoint a new trustee. It applies irrespective of when the trust was created but does not apply as respects a public trust (subsection (3)), and operates as a default provision. Where subsection (1) applies, the effect of an appointment is also to remove any existing trustee from office (subsection (2)). References to a trustee not being capable or traceable are to be read with sections 83 and 84 respectively.
17.Section 3 of the Act is a default provision and allows trustees (but not executors dative; see section 81(1) of the Act) to assume additional trustees (subsection (1)). It essentially restates the current law, which is in section 3(b) of the 1921 Act. Subsections (2) and (3) cater for specific circumstances in which a protector has been appointed; they provide that any direction by the protector that an additional trustee be assumed must be carried out. (Protectors are governed by Chapter 7 of Part 1 of the Act.) This provision applies irrespective of when the trust was created (subsection (4)).
18.Section 4 of the Act, which implements recommendation 4 in the Report on Trust Law, deals with the situation where trust property requires to be conveyed to new or additional trustees following their appointment or assumption. Subsection (1) provides that the appointment of a trustee by the court or the assumption of a trustee by the trustees operates as a general conveyance of the trust property by the existing body of trustees in favour of themselves and any additional trustee jointly. Subsection (2) provides that in the case of the appointment of a new trustee in circumstances where there is no existing capable or traceable trustee, there will be a general conveyance from the former trustee (who is incapable or untraceable) in favour of the new one. Subsection (3) addresses the particulars of the appointment of a trustee on the application of an ex officio trustee under section 66. This section applies irrespective of when the trust was created, but only as respects an assumption or an appointment taking place after the section comes into force (subsection (4)).