Commentary on Sections Part 1 – Trusts Powers in relation to ex officio trustees
116.Section 66 of the Act implements recommendation 10(1)(b) and (2). Where a truster has provided that the holder of a specified office should be a trustee by virtue of holding that office (for example, the minister from time to time of a particular parish) that trustee is termed an ex officio trustee. Such trustees feature in a number of trusts, especially public ones. The offices which ex officio trustees hold vary widely; examples include the principals and other office holders in the Scottish Universities, judges, sheriffs, and local holders of religious office, such as the minister of a parish. Whilst there are sound reasons for a truster to use ex officio trustees, it can give rise to various problems, whose solutions in the current law are not always either clear or satisfactory. Subsection (1) provides a default power for an ex officio trustee to apply to the court, nominating a person to act as trustee in the ex officio trustee’s place, upon which the court may grant an order whose effect is two-fold: it acts as an appointment of the person nominated (subsection (1)) and a removal of the ex officio trustee (subsection (2)). The appointed person is not in any way dependent upon, or under the direction of, the nominating trustee (subsection (5)). The new trustee is to be treated on an equal footing with the other trustees and may resign, or be removed, in the same way as any other trustee, in which case the nominating person resumes the role of trustee. The appointed person automatically ceases, however, to be a trustee when the nominating person ceases to hold the relevant office (subsections (3) and (4)): so, for example, Mary, who is ex officio trustee of the Sunny Park Trust in her capacity as parish minister, may nominate Tom to act as trustee in her stead; but if he is still a trustee at the point when she ceases to be the parish minister then his appointment automatically terminates at that point. The power is exercisable by the Court of Session and the appropriate sheriff court (under section 81(1) and (3)). This provision applies irrespective of when the trust was created (subsection (6)).
117.Section 67 of the Act implements recommendation 10(1)(a) and (2). Subsection (1) provides that the trustees of a trust with an ex officio trustee may apply to the court for the removal of the relevant office from the trust deed. Such an application may also be made by the holder of the office, or the body of which the holder is an officer, where the specified office remains in existence (subsection (2)). This section will be of particular use where the role of an office has disappeared, perhaps because of institutional re-organisation of the underlying body; but there will also be other occasions when it may be appropriate, e.g. where the office no longer has the function which made it attractive for inclusion when the truster created the trust.
118.If an application under subsection (1) seeks the replacement of such an office with another office, the holder of which is to act as an ex officio trustee, the court may make the substitution provided subsection (3)(a) or (b) is satisfied. Those are either that the new office is more appropriate for the trust than the one to be removed or that the one to be removed is no longer in existence. The power is exercisable by the Court of Session and the appropriate sheriff court (under section 81(1) and (3)). This provision applies irrespective of when the trust was created (subsection (4)).