PT-2024-000315 - [2025] EWHC 3011 (Ch)

The exercise of the jurisdiction

In his oral submissions, Mr Burton accepted that the correct approach to the claim would be for the court to consider the individual grounds relied upon by the Claimants, but then to step back and look at the claim in the round. I consider that it is the correct approach as a matter of law where multiple grounds of removal are relied upon. The court’s task is to consider each ground individually, but then to consider in the round whether the trustee’s removal or replacement is warranted.

Similarly, where there are multiple individual trustees and the claim seeks the replacement of all of the trustees, Mr Burton accepted that the correct approach is to consider whether the removal or replacement of each trustee is appropriate. In this case, the Claimants’ position is that the trustees should all be replaced – that they stand together, and should fall together – but in my view it is correct as a matter of law that their position should be considered individually.

Mr Learmonth KC relied on the dictum of Park J in Isaac v Isaac, at [66], that the removal of trustees is “quite a drastic step for the court to take, and in my judgment should only be taken in a clear case.” I do not think that the Judge intended by those words to add any permanent gloss to the applicable test, and was instead making no more than the common sense observation that the removal or replacement of trustees is likely to have serious ramifications for the future administration of a trust, and as such is not a step that the court will take lightly. The appointment of professional replacement trustees may also impose additional costs on the trust, which are also plainly relevant to the exercise of the jurisdiction. The applicable test remains as I have set it out above.

Relying on dicta of Newey J in Kershaw v Micklethwaite [2010] EWHC 506 (Ch) (that “[t]he fact that Mrs Kershaw chose the defendants to be her executors… militates against their removal”), and of the Chief Master in Harris v Earwicker [2015] EWHC 1915 (Ch) (that “[t]he wishes of the testator, as reflected in the will, concerning the identity of the personal representatives is a factor to take into account”)Mr Learmonth KC also submitted that the fact that trustees are selected by the creator of the trust is a factor that weighs against their removal or replacement. I agree, although again this does not alter the applicable test. The fact that trustees have been chosen by the creator of the trust does not change the court’s focus on the welfare of the beneficiaries and the proper administration of the trust, but it does indicate that the removal or replacement of trustees who have been specially selected for their knowledge, experience and relationships may harm, rather than promote, the administration of the trust. Where such features exist, the court will take them into account in the exercise of its jurisdiction, but again the applicable test remains as set out above.

Finally, it is common ground that the wishes of the beneficiaries of the trust are also relevant to the exercise of the jurisdiction, but are not determinative.