CH-2025-BRS-000001 - [2025] EWHC 2373 (Ch)

The removal of trustees from office is governed by the inherent jurisdiction of the court, and also by section 41 of the Trustee Act 1925, which relevantly provides:

“(1)

The court may, whenever it is expedient to appoint a new trustee or new trustees, and it is found inexpedient difficult or impracticable so to do without the assistance of the court, make an order appointing a new trustee or new trustees either in substitution for or in addition to any existing trustees or trustees, or although there is no existing trustee … ”

As to the inherent jurisdiction, I have already referred above to the decision of the Privy Council in Letterstedt v Broers (1884) 9 App Cas 371, and cited a passage from the opinion of Lord Blackburn, and another from the Carvel case, where Lewison J cited other passages from the same opinion. It is clear that much the same considerations apply to removal of a trustee as they do to the removal of a personal representative. In each case the litmus test is the welfare of the beneficiaries as a whole.

In London & Capital Finance plc v Global Security Trustees Limited [2019] EWHC 3339 (Ch), an application was made to remove a trustee. Chief Master Marsh commented on the difference between the inherent and the statutory jurisdictions. He said:

“25.

… The exercise of the court’s inherent jurisdiction to remove a trustee is exceptional in the sense that it is not a jurisdiction that is commonly exercised, because the power under section 41 usually suffices. There is no basis, however, for adding a threshold test of exceptionality and the corollary that a strong case must be made out if the application is made under the inherent jurisdiction. This is because the jurisprudence dealing with the exercise of the power, whether exercised under section 41 or under the inherent jurisdiction, already has built within it adequate checks and balances. The court will never remove a trustee lightly. The court will always wish to consider the application in light of all the circumstances, with the welfare of the beneficiaries firmly in mind. If there has been misconduct by the trustees, it is likely that an order for removal will be made. On the other hand, the fact that the beneficiaries have fallen out with the trustees is likely to be insufficient on its own.”

It is to be noted from this passage that the Chief Master did not say that misconduct by the trustee was necessary before an order for removal would be made. That would have been inconsistent with what Lord Blackburn said in Letterstedt v Broers, with what Lewison J said in the Carvel case, and with what the Chief Master himself had said in both Harris and Schumacher. I note that, in his judgment, the judge below made the same point in different words:

“19.

… (2) Relationship breakdown is not sufficient of itself to justify the replacement of an executor/trustee, but it is relevant where the administration of the estate/trust is compromised.”