Law of Trusts
Change of Trustees and End of the Trust: Complete Notes (Part G)
Part G covers Chapters VII and VIII of the Act (Sections 70 to 79): how a trustee leaves office, how new trustees are appointed and take over the property, and how a trust is extinguished or revoked. This consolidated note covers Topics 29 to 31.
1. Leaving Office (Sections 70 to 72)
The office is vacated only by death or discharge (Section 70). A trustee may be discharged only by (a) extinction of the trust, (b) completion of his duties, (c) means prescribed by the instrument, (d) appointment of a new trustee in his place, (e) consent of himself and all competent beneficiaries, or (f) the court on petition (Section 71). On petition, the court may discharge him for sufficient reason, with costs from the trust property; without such reason, only if a proper replacement is found (Section 72). The Act has no separate removal section; removal operates through Sections 60, 73 and 74 and any power in the instrument, and courts remove trustees only where their continuance endangers the trust.
2. New Trustees (Sections 73 to 76)
Point | Rule |
|---|---|
Occasions (Section 73) | Disclaimer; death (including a nominee dying before the testator); absence from India for six continuous months; leaving India to reside abroad; insolvency; desire to be discharged; refusal, or unfitness or personal incapacity in the court's opinion; acceptance of an inconsistent trust |
Who appoints (Section 73) | The person nominated in the instrument; failing whom the author if alive and competent, the surviving or continuing trustees, the legal representative of the last trustee, or with court consent retiring trustees; in writing; numbers may be increased; the Official Trustee may be appointed sole trustee by court order |
Court appointment (Section 74) | Where Section 73 is impracticable, on a beneficiary's petition; the court considers the author's wishes, the appointor's wishes, whether the appointment promotes the trust, and all beneficiaries' interests |
Vesting (Section 75) | Property vests automatically in the new trustee, alone or jointly; he has the same powers and discretions as an original trustee |
Survival (Section 76) | On the death or discharge of a co-trustee the trust survives and the property passes to the others, unless the instrument expressly declares otherwise |
3. Extinction and Revocation (Sections 77 to 79)
A trust is extinguished when its purpose is completely fulfilled, becomes unlawful, or becomes impossible, or when a revocable trust is expressly revoked (Section 77). Unexhausted property results to the author or his representative (Section 83), or for public trusts may be applied cy-près.
- Testamentary trusts: revocable at the testator's pleasure (Section 78).
- Other trusts: revocable only with the consent of all beneficiaries competent to contract, under an express power reserved to the author, or, for an uncommunicated trust to pay the author's debts, at his pleasure (Section 78). A non-testamentary trust is therefore irrevocable by default.
- Protection: revocation cannot defeat or prejudice what the trustees have duly done before it (Section 79).
- Variation: there is no general statutory variation power; change comes through the instrument, beneficiary consent (Sections 11, 56, 78), the court's consent for incompetent beneficiaries (Section 11), court directions (Section 34), and cy-près for public trusts.
⚠ Key point Part G in one line: a trustee leaves office only by death or discharge through the six routes in Section 71, with a court petition available; replacements are appointed by the nominated person, the author, continuing trustees or the court, and take the property and powers automatically, while the trust survives to co-trustees; a trust ends when its purpose is fulfilled, unlawful or impossible or it is revoked, and a non-testamentary trust is revocable only by all competent beneficiaries, an express reserved power, or as an uncommunicated debt trust, without undoing what was duly done. |
4. The Topics of This Part
- Topic 29: Vacating office and discharge of trustees (Sections 70 to 72)
- Topic 30: Appointment of new trustees, vesting and survival of the trust (Sections 73 to 76)
- Topic 31: Extinction and revocation of trusts (Sections 77 to 79)