can a trust exist without a trustee-ie a corporate trustee company acting as trustee is struck off the registry
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The trust still exists, but would be completely ineffective because no one could make decisions. A properly drawn up trust deed should provide for this.
Regrettably many trust deeds are not well drawn and would not provide for a replacement. It is of course relatively easy to restore a company once it has been struck off the register.
Someone could readily make such an application. You also need to look at the trust deed to look at the causes which provide for appointment. Some have a power of appointment conferred upon somebody, and that may be the answer.
the trust deed specifies there must be two trustees -can a corporate trustee company act on behalf of the two individual trustees once they have both been removed
If the trust deed says two trustees, it means two trustees. The corporate trustee company is insufficient. You have to look at what the document provides. In addition, if the trust has previously had two trustees, it must continue with two.
if the trustees have the authority to vary the trust deed to only have one trustee -is the corporate trustee sufficient
in my case the official assignee wants to replace me as the trustee -does it need the permission of the other trustee to act
The official assignee can of course seek to replace you, but again it comes back to the trust deed is to weather the other trustee needs to consent to you being replaced.
as a bankrupt i am able to be a trustee-so as a defence could i argue subject to the 'trust deed'stating that the o/a has not the authorisation to replace me as a trustee [suborgate /]with out the consent of the other trustee
Interestingly, there is nothing in the Insolvency Act which says that you cannot be a trustee. However you are restricted in what you can do in terms of managing any business of the trust, and you cannot of course be a director of the company. So while you can continue to be a trustee you would be very restricted in what you can do.
in the the case of the other trustee i have appointed a corporate trustee company -which the o/a is ignoring and has applied to court to reinstate the original professional trustee -who has been removed by myself as appointor settler and trustee
So the issue of whether the official assignee can replace you without consent of the other trustee, depends on interpretation of the deed. If you have the power of appointment, then you could appoint another trustee and resign if anyone else would take on the job.
it may be too late they have served papers on me as 'trustee' of the trust-if i removed myself again for the third time wouldn't it look a bit obvious-i feel sorry for the professional trustee as the trust owes me personnally $305,000. i think that they are either going and try and get him to pay or get him to apply to court with them acting [as me as a trustee]to unravell the properties sold to another trust ?
You will need senior counsel to argue this. These are not simple issues.
thanks chris -i will have to read the trust deed in great detail -you have been a help in definning the issues-i like to think of my trust been suspended in amination -but we have reregistered the corporate trustee company and there maybe 'trust law' which allows a trust to be run by a corporation ?as a single trustee ?
It is my understanding that once you have 2 trustees you must stick with that
But the Trustee Act says, and my earlier information was not quite correct
2)On the appointment of a trustee or trustees for the whole or any part of trust property—
(a)the number of trustees may be increased; and
(b)a separate set of trustees may be appointed for any part of the trust property held on trusts distinct from those relating to any other part, and whether or not new trustees are or are to be appointed for other parts of the trust property; and any existing trustee may be appointed or remain one of the separate set of trustees; or if only 1 trustee was originally appointed, then 1 separate trustee may be so appointed for the first-mentioned part; and
(c)it shall not be obligatory to appoint more than 1 new trustee where only 1 trustee was originally appointed, or to fill up the original number of trustees where more than 2 trustees were originally appointed; but, except where only 1 trustee was originally appointed, a trustee shall not be discharged under this section unless there will be either a trustee corporation or at least 2 individuals to act as trustees to perform the trust; and
Thats section 43
So it may be possible to continue with the corporate trustee
So it may be possible to continue with the corporate trustee as you want
hey -thats makes a difference -we may end up in the high court over this one -thanks -YOU get a big 'tick'
can a corporate trustee act as a corporation
LLB MMgt FAMINZ 32 years qualified as lawyer
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