Consider the position where land is held in trust, but where one of the Trustees has lost mental capacity and is therefore unable to act. In order to effect a sale of the land, two Trustees are required. How can this be resolved?
This happens quite frequently where Executors of a Will have held land on trust for a surviving spouse, but have then themselves lost capacity before the property has passed to the next generation. This is because, understandably, many people ask someone of their own generation (a trusted friend) to act as Executor, and so they may be of a similar age.
At first glance, the solution may be to appoint a Deputy for the Trustee, but this will not work as the scope of a Deputy does not extend to stepping into a Trustee role. Nor does the Deputy acquire the legal standing to appoint a replacement Trustee. However, there are steps that can be taken to remedy the position.
A Deputy is permitted to make an application to the Court of Protection for new Trustees to be appointed, and the Court then has the authority to appoint Trustees.
Before taking this route though it is worth checking whether it is required. As the circumstances usually arise by operation of a Will, some cases which appear to be properties held in trust may not in reality be quite as they seem. In cases where the surviving person is entitled to the beneficial interest of the deceased, they may have sufficient interest in the property to effect a sale directly.
If you are looking to sell property and have different legal owners to those looking to sell the property, please give us a call. There will be a way to put in place the legal status needed, even if it is not immediately obvious how this is done.
