Commentary on Sections Part 1 – Trusts Discharge
26.Section 12 essentially restates the current law relating to the discharge of trustees in sections 4(1)(g) and 18 of the 1921 Act, which provide a power for trustees who resign – and the representatives of trustees who have died – to be discharged, either by the remaining trustees or by the court. As a former trustee may continue to have trust liabilities arising from the trustee’s acts and intromissions (i.e., the trustee’s dealings with the trust property) even after leaving office, discharge is important as it brings any such liabilities to an end. Subsection (1) provides for discharge by either the remaining trustees or the beneficiaries; where this cannot be done, subsections (2) and (3) permit the Court of Session to grant a discharge.