In 1981 as I have said, W.R.S. Katz and W.E. Katz went to Canada out of the British Isles.

I have had to me produced authority which says that even if they came back for a week, that would have interrupted a 12 month period in other words the 12 month period is strictly applied.

Section 35 is a statutory means of replacing either compulsorily or voluntarily under that Section when a new Trustee is to be appointed.

Mr Conti suggests that as W.R.S. Katz and W.E. Katz were in Canada, G.R.M. Moore could not validly retire.

I am afraid that I cannot accept that argument as Section 38 and 35 are separate. If Section 38 had been intended to provide what Mr Conti suggests then it would have to have been set out in additional words. It is not concerned with residence. As long as two Trustees are left then a third can retire. It was therefore quite proper for G.R.M. Moore to retire under Section.38. It left W.R.S. Katz and W.E. Katz the two Trustees to act, so the fact that they had left the Isle of Man and gone to Canada did not stop them performing their duties as Trustees under the Trust from a distance.

Their status did not change, they were still Trustees of the M.H.S. Katz Will. Underhill and Hayton make it clear that persons resident outside the British Isles do remain eligible for appointment as Trustees but if they are appointed as Trustees that their appointment may be voidable. Thus, quite clearly, W.R.S. Katz and W.E. Katz had not been removed as Trustees of the M.H.S. Katz Trust and although liable to be removed, could and did continue acting.