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Mr. Desai was nominated in a will as trustee but died before the testator. The will names Ms. Kapoor as the person empowered to appoint new trustees, and she is willing to act. Which view is correct under Section 73?

Ms. Kapoor may appoint the new trustee in writing. Section 73 expressly treats a person nominated trustee in a will who dies before the testator as a dead trustee, so a vacancy exists and the nominated appointer can fill it without Court involvement.

  1. ANo vacancy arises because Desai never accepted the office, so the Court must appoint
  2. BMs. Kapoor may appoint, because the provisions on a dead trustee include a person nominated in a will who dies before the testatorCorrect
  3. COnly the testator's legal representative may appoint
  4. DAppointment is possible only with the Official Trustee's consent

Explanation

Section 73 states that its provisions relating to a trustee who is dead include a person nominated trustee in a will but dying before the testator. So a vacancy arises, and the person nominated in the instrument, Ms. Kapoor, may appoint in writing under her hand. Court appointment under Section 74 is only a fallback.

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