In Re Duxbury’s Settlement Trusts: CA 21 Nov 1994

The Public trustee appealed against an order which had recognised his appointment under the 1959 trust, but had held that because of the explicit prohibition in the trust instrument against a trustee acting alone, he could not act.
Held: Powers under a trust deed were satisfactorily exerciseable by the Public Trustee acting alone despite the trust deed’s express requirement that no trustee shall act alone. The powers given under the Act inevitably included this power: ‘It would be idle to appoint a trustee who was unable to act. Appointment and action were for this purpose inseparable.’ It was futile to distinguish between a power to appoint a sole trustee and the power of that trustee to act alone.
Nourse LJ, Henry LJ, Sir John Megaw
Times 19-Dec-1994, Gazette 16-Dec-1994, Ind Summary 06-Feb-1995, [1995] 1 WLR 425, [1994] EWCA Civ 21
Public Trustee Act 1906 5(1)
England and Wales
CitedIn re Moxon 1916
Under the statutory power of appointing new trustees out of court, the public trustee could be appointed and act even though the instrument might require a minimum of two trustees to act. The section was ‘not merely by way of addition o the . .
CitedMettoy Pension Trustees v Evans ChD 1990
Where a trustee acts under a discretion given to him by the terms of the trust the court will interfere with his action if it is clear that he would not have so acted as he did had he not failed to take into account considerations which he ought to . .
CitedRe Hastings-Bass; Hastings v Inland Revenue CA 14-Mar-1974
Trustees of a settlement had exercised their power of advancement under the section, in order to save estate duty by transferring investments to be held on the trusts of a later settlement. However the actual effect of the advancement was that the . .

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Updated: 10 April 2021; Ref: scu.81858