In Re Brockbank [1948] Ch 206 it was held by Vaisey J that beneficiaries who are together absolutely entitled to trust property were not entitled to control the exercise by their trustees of the fiduciary power of appointing new trustees; they had either to keep the trusts on foot, in which case the power of appointing new trustees remained in those given such power by the settlement, or they had to bring the settlement to an end. (See also Stephenson v Barclays Bank [1975] STC 151 at page 163.)

The intention of Section 19 is to reverse the Brockbank decision, at least partially. If the settlement confers on a person the power to appoint new trustees, or provides that the provisions of the Section are not to apply -- Section 21(5) -- the beneficiaries have no power to appoint their nominees. If there is no such person and the beneficiaries are of full age and capacity and are together the only persons having any interest under the trust they can require the existing trustees (or if they have all died, the personal representatives of the last to die) to retire and appoint their nominees as new trustees.

The direction to the trustees to retire or to appoint new trustees must be in writing -- sub-section (2). Sub-section (3) provides that, subject to certain safeguards, a trustee who has been directed to retire shall do so; there is no corresponding provision relating to the appointment of new trustees by the persons to whom a direction to that effect has been given.

The main safeguard so far as the retiring trustee is concerned is that --

(b) reasonable arrangements have been made for the protection of any rights of his in connection with the trusts

What those rights are is not specified. Presumably they include the right to be indemnified out of the trust fund for fiscal and other liabilities for which he is not personally liable. (cf Section 60 of the Taxation of Chargeable Gains Tax Act 1992.)

A trustee cannot be compelled to resign unless there will be at least two trustees or a trust corporation after such retirement. (This mirrors Section 39 of the Trustee Act 1925.) He also cannot be made to retire unless either a further trustee is appointed at the same time or his fellow trustees consent to his retirement -- (3)(c) and (d).

Sub-section (4) requires that the retiring trustee and the new trustees shall do anything necessary to vest the trust property in the new and continuing trustees. This is similar to Section 39(2) of the Trustee Act 1925. Section 40(2) of that Act, which relates to express and implied vesting declarations when a trustee retires, has been amended so as to include a reference to this Act -- see Schedule 3, Paragraph 3(14).