PT-2024-000461 - [2025] EWHC 2285 (Ch)

Fundamental to the defendants’ position is their submission that they are not merely prospective trustees but that the will trust was created by the will itself such that the rights arising from the existence of the chose in action were vested in the trustees of the will trust as soon as probate was granted. At that point the will trust was constituted, the Rutland Trustees were Rutland Trustees and the Rutland Trust held a valuable asset, the chose in action to call for the due administration of the estate. The Rutland Trustees were the persons entitled to call for the due administration of the estate. Vicki as the remaining Rutland Trustee by the DOA appointed the defendants as Rutland Trustees and that right now vests in them. That they say is in reality the beginning and the end of it.

Lewin at 3.066: Testamentary Trusts explains:

“Subject to the requirement of the will being entitled to probate, a trust may be declared by will of any property which vests in the testator’s personal representatives. Such a testamentary trust is completely constituted as soon as the will is admitted to probate, even where the named trustee is incapable of acting [Re Smirthwaite’s Trusts (1871) L.R 11 Eq. 251 (“ReSmirthwaite”)].”

Mr Adams disagrees with the editors of Lewin. He says that ReSmirthwaite is not authority for the proposition set out in Lewin. He submits that Gunson v Simpson (1867-68) L.R 5Eq 332 on which Re Smirthwaite relies has to be considered on its own facts.

In Gunson, the sole trustee named in the will had pre-deceased the testator. By her will the testator had left her real property and personal property to the trustee on trusts for sale with the proceeds to be divided between the persons who made the claim and the trustee. The claim was brought by persons interested in the proceeds of sale on the basis that there was no trustee to administer the sale in accordance with the terms of the will. Having accounted to the persons so interested the trustee would then hold the balance of the proceeds of sale on trust for the heir of the testatrix. An order was made appointing a new trustee. This was objected to by the Registrar who sought to argue there was no jurisdiction to appoint a new trustee because the original trustee had pre-deceased the testator.

Section 11 Trustee Act 1850 engaged the court’s powers if the person ultimately entitled under the terms of the trust, for example, could not be found. The Trustee Act 1850 provided the court with broad powers in respect of contingent rights including the power to appoint new trustees.

Whilst the Vice Chancellor was clearly in no doubt about the extent of his power to appoint a new trustee or the existence of the trust, he adjourned the application to allow the applicants to seek to comply with the requirements of the Trustee Act 1850 and bring themselves within section 11 so that any order made would bind the heir.

In Re Smirthwaite the will of Mr Smirthwaite left his residuary real and personal estate to three trustees on trust including a trust to sell the real estate. By the time he died all three of the trustees had pre-deceased him. At the time of his death he held freehold and copyhold property. The tenant for life and the first tenant in tail in remainder applied to appoint new trustees under the Trustee Act 1850 and for a vesting order. The applicants served the heir at law and the customary heir of the testator so as to give them notice of the claim. Sir R Malins VC concluded that as the heir was before the court there was no difficulty in the court appointing new trustees to the trust.

Mr Adams submits Gunson is support for his contention that it is only a beneficiary that has the requisite rights and standing and that the reason the new trustees were appointed in Re Smirthwaite was because all the interested parties were before the court including the heir/beneficiary. As a consequence the court felt able to vest the assets in the new trustees. In a sense that is right but that was not because there was no existing trust and or that the trust had not already been properly constituted, but because the trustees of that trust were dead. The applicants in Re Smirthwaite having complied with the requirements of the Trustee Act 1850 the judge was satisfied he could appoint the new trustees to administer the trust. The question put to the court did not concern the vesting order at all but whether the court had the power under the Trustee Act 1850 to appoint new trustees where there were no existing trustees.

In both Gunson and Smirthwaite the decisions were about the appointment of new trustees to existing trusts where the trustees had pre-deceased the testator in each case. There was no doubt expressed in either authority that the trusts did not exist. Gunson therefore does not assist Mr Adams at all.

As Mr Moffett argues, quite the contrary, the existence of the trust and the need for new trustees underlies both claims. The applications were advanced on the basis that the trusts had already been constituted and were focussed on who should be appointed to replace the trustees named in the wills and on what basis.

The judge in Re Smirthwaite considered he had sufficient jurisdiction to appoint new trustees to a trust that came into existence by the terms of the will of the testator on the application of those entailed in the remainder. That notice was given to the heir who may have had an interest in not only the underlying assets but also the identity or choice of trustee does not change that analysis. There was no doubt in the court’s mind that it was appointing trustees to a trust that arose under the will and currently had no trustees.

Even in Gunson the court did not doubt the existence of the trust but was not prepared to appoint the trustees without notice to the heir. Since the trustee so appointed would be administering the trust for that heir having accounted to the applicants that was not a surprising outcome at all. It is hardly surprising that the court would want to be satisfied that the parties had complied with the provisions of the Trustee Act 1850 before making any order. There was no suggestion that the applicants did not have standing to make the application nor that the trust did not exist.

It seems to me therefore that the learned editors of Lewin are right to conclude that Re Smirthwaite is authority for the proposition that a will trust is completely constituted as soon as the will is admitted to probate.

Whilst a trust cannot exist without assets, as set out above at the same time as the will is admitted to probate the will trust accrues a valuable asset in the form of a chose in action of the right to call for due administration of the estate. Consequently, the conclusion that the will trust is completely constituted on the grant of probate is entirely conventional.

I am satisfied therefore that when the grant of probate was obtained on 30 August 2002 that the Rutland Trust was completely constituted in accordance with the terms of Clauses 9 and 10 of the will and held a valuable asset in the form of the chose in action to call for due administration of the estate. Vicki and Mr Neal were from then the Rutland Trustees and not prospective trustees. Mr Neal disclaimed leaving Vicki as the remaining Rutland Trustee.

If follows that the DOA entered into by Vicki and the defendants was a valid and effective DOA appointing the defendants as Rutland Trustees together with Vicki.

The defendants are therefore the current Rutland Trustees.