england-and-wales
Why can a court always, irresistibly appoint a trustee?
<p>The embolded phrases make it sound like a court can unpreventably, necessarily appoint trustees. Are there no exceptions?</p>
<p>Can't a court fail to appoint  a trustee?  For example, can't a court fail to find anyone willing to be a trustee —  particularly if the trust appears too complicated or controversial, and/or the trustee would not be recompensed enough?</p>
<blockquote>
<p>(3) It is a fundamental principle of Equity that a trust will not fail for want of a trustee.65
If a trust is created by the settlor, <strong>but the trustee declines to act as trustee, the beneficiary
can apply to the court to have a trustee appointed [emphasis mine]</strong>. The right of the beneficiary to have a
trustee appointed cannot be considered to be a right against the trustee’s right of ownership,
because there will be no trustee at that particular moment. It is much more satisfactory
to analyse this right as arising because Equity will ensure that the beneficiary’s
proprietary right to the trust property is respected.</p>
</blockquote>
<blockquote>
<p>65 See Section 12.4.5, p. 374.</p>
</blockquote>
<p>Virgo, <em>Principles of Equity &amp; Trusts</em> 2020 4th edn, page 51.</p>

<h2>The court can appoint a <a href="https://www.gov.uk/government/organisations/official-solicitor-and-public-trustee" rel="nofollow noreferrer">government trustee</a></h2>
<p>All common law governments have an office called something like the Public Trustee that can act as a trustee of last resort. They work to a schedule of fees payable by the trust. Often they also provide their services commercially.</p>
<p>They are often the same office that acts as the public guardian of “wards of the state”.</p>
<p>They don’t have the right to refuse a court appointment.</p>
<p>Of course, for an unsustainable trust, the court can order it would up instead and have the assets distributed to the beneficiaries.</p>

<blockquote>
<p>Can't a court fail to appoint a trustee? For example, can't a court
fail to find anyone willing to be a trustee — particularly if the
trust appears too complicated or controversial, and/or the trustee
would not be recompensed enough?</p>
</blockquote>
<p>There are circumstances under which a court can find that a trust should be terminated prior to its express terms (beyond the Rule Against Perpetuities or its modern equivalent).</p>
<p>For example, a court can terminate a trust because the amount of the trust estate is too small to be practical to manage in trust form.</p>
<p>In order to decline to appoint a trustee, the court would, in practice, have to find valid grounds to dissolve the trust. The inability of the court or parties to locate anyone who would consent to serve as trustee (including the lack of eligibility to have a government trustee appointed) would be one factor among many that might be considered in a case like that.</p>
<p>In the alternative, if there was one particular provision of the trust that made it impossible to find a trustee for an otherwise valid trust (e.g. compensation was limited to 1 British pound per year for a trust owning hundreds of profitable rental properties), the Court could exercise its powers in equity to reform the offending trust provision.</p>
<p>But if a court declined to appoint a trustee for a viable trust just because it didn't want to do so, this would be an abuse of discretion which would be grounds for an appeal of that ruling that would very likely prevail.</p>
<p>Also, while, absent grounds to dissolve the trust, a court has a duty to appoint a successor trustee, that doesn't mean that the court has a duty to do so immediately.</p>
<p>For example, suppose that the trustee died, and the beneficiaries of the trust filed a petition with the appropriate court to have a successor trustee appointed, but due to a staffing shortage on the court and scheduling conflicts of the counsel for the parties in setting a hearing on the matter, a trustee can be appointed no sooner than seven months later. The court's delay would only rarely be something that could be raised in an interlocutory emergency request for a writ (or whatever it is called these days) insisting that the court take action immediately on the matter in order to prevent urgent harm.</p>

<p>I am startled that Graham Virgo didn't expound this in his textbook! Perhaps you ought try another better textbook? <a href="https://www.bloomsbury.com/uk/trusts-law-9781137606723/" rel="nofollow noreferrer"><em>Trusts Law</em> (2017) by Charlie Webb &amp; Tim Akkouh</a> explain this at page 302, just like <a href="https://law.stackexchange.com/a/75304">Dale M's answer</a>.</p>
<blockquote>
<p>The first question to be addressed concerns the role of trustee. In the first instance,
the choice of trustees is (in relation to intended trusts) a matter for the settlor. He
can decide how many trustees he would like and who they will be. The law imposes
few limitations on this freedom. One is that a child cannot act as trustee: section 20
of the Law of Property Act 1925. Another is that, in respect of trusts of land, there
may be no more than four trustees: section 34 of the Trustee Act 1925. Those chosen
by the settlor to act as trustees are free to refuse. However, if they do, this will not
lead to the failure of the trust. <strong>The principle is that a trust will not fail for want of
a trustee and the court will ensure that another, willing trustee is appointed. In the
last resort, the trust will be taken on by the Public Trustee, a corporate trustee provided
by the state. [emphasis added]</strong></p>
</blockquote>
