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appointment of trustees

Q2379. How can trustees be appointed?

Appointment of trustees may take various forms, depending on the mode of creation of the trust, whether it was created by settlement or in a will. The various modes of appointment of trustees are set out as follows:

  • a. Appointment of Original Trustees by Settlor/Testator: The original trustees may be expressly appointed by the settlor of the trust in case of inter vivos trust and the testator in the case of trust by will by insertion of a clause in the settlement instrument or will, naming particular persons as trustees.

  • b. Appointment under Statutory Provisions: Statutory appointments can be made in the followings in the following orders:

    1. Persons nominated or named in the trust instrument for the purpose appointing new trustees, can make such appointments.
    1. Where there is no such person nominated as contained in the instrument or will, or there is no such person that is able and willing to act, in that case, the survivor or continuing trustee or trustee for the time can make such appointment.
    1. In the absence of appointment by the settlor or statutory appointment, the personal representatives of the last surviving or continuing trustee can make such appointments. According to the statute, new trustee may be appointed when there is vacancy due to an outgoing trustee or where it has become expedient to appoint new trustees in addition to the existing ones. A replacement of an outgoing trustee may occur in the circumstances where a trustee remains out of Nigeria for more than twelve months, desires to be discharged, refuses to act, is unfit to act, incapable to act, is an infant, or being a corporation which has been dissolved and thereafter incapable of acting as from the date of dissolution.

  • c. Appointment by the Court: New trustees may be appointed under the inherent jurisdiction of the court and such power may also be conferred by statute on the court. Apart from appointment by the court under its inherent jurisdiction, statutes can also confer power of appointment of new trustees either in substitution for or in addition to any existing trustee expressly on the court. Re Henderson (1940) Ch. 764.