6.4. Trustees and Fiduciary Obligations Flashcards

1
Q

What are some provisions granted by the Trustee Act 1925?

A

s36 - [appointment of trustees] - power of appointing new or additional trustees
s39 - [retiring of trustees] - retiring of trustee without a new appointment
s40 - [vesting of trust property] - vesting of trust property in new or continuing trustees
s41 - [court’s ability to appoint trustees] power of court to appoint new trustees (application to court)

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2
Q

What are some provisions granted by TLATA 1996?

A

s19 - appointment and retirement of trustee at instance of beneficiaries

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3
Q

What can beneficiaries do if a trustee has breached a duty?

A

Beneficiaries can sue the trustees for compensation if the trustees have breached a duty and this has caused loss to the trust.

Duties are laid down by statute and the general law.

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4
Q

What is the standard of care that should be demonstrated by trustees?

A

Trustees must exercise the appropriate standard of care - using such care as would a prudent man of business (Speight v Gaunt)

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5
Q

What are the specific duties for trustees? [E.P.I.D.A]

A
  1. Exercise reasonable care and skill in administering the trust
  2. Provide information about the trust to the beneficiaries
  3. Invest trust property
  4. Distribute trust property in accordance with the trust’s terms
  5. Act impartially

Remember EPIDA!

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6
Q

What is the standard investment criteria (section 4 of the Trustee Act)?

A

When exercising a power of investment, trustees must have regard to the ‘standard investment criteria’ (S.D.A.R):
1. Suitability
2. Diversification
3. Advice (s5)
4. Review

If trustees do not consider these factors, they are in breach of trust. If this causes loss to the trust, the trustees must compensate the beneficiaries.

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7
Q

Explain the criterion of ‘suitability’ in relation to investments

A

Particular investment should be a suitable example - e.g will shares benefit both life tenant and remainderman?

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8
Q

Explain the criterion of ‘diversification’ in relation to investments

A

Trustees must consider the need for diversification of investments insofar as is appropriate to that trust

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9
Q

Explain the criterion of ‘advice’ in relation to investments

A

Trustees must obtain and consider proper advice about the way they should exercise their power of investment

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10
Q

Explain the criterion of ‘review’ in relation to investments

A

Trustees must from time to time review trust investments and consider whether they should be varied

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11
Q

What is the statutory duty of care that needs to be adopted by trustees?

A

Trustees have a duty to adopt the appropriate standard of care as per their knowledge and expertise (s1 and Sch 1 of the Trustee Act 2000)

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12
Q

What is meant by the ‘power of maintenance’ that can be exercised by trustees?

A

This allows trustees to apply the income of the trust fund for minor beneficiaries. Trustees may pay or apply the whole or any part of the trust income as they see fit.

Trustees also do not need to consider the age and requirements of the infant and other income available to him or her.

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13
Q

What is meant by the ‘power of advancement’ that can be exercised by trustees?

A

This allows trustees to apply part of a beneficiary’s share of trust capital before that beneficiary is strictly entitled to receive it.

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14
Q

What are the two main rules that apply to fiduciaries (such as trustees)?

A

The no-conflict rule and the no-profit rule

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15
Q

What is the ‘no-conflict rule’?

A

The no-conflict rule requires that the fiduciary not put themselves in a position of actual or potential conflict between their duty and their own interest.

This includes not selling trust property to themselves (no self-dealing) and not purchasing the beneficial interest of any of the beneficiaries unless certain requirements are fulfilled (fair-dealing)

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16
Q

What is meant by the ‘no-profit rule’?

A

The no-profit rule requires that a fiduciary does not make a personal profit from their position as a fiduciary. The remedy for a breach of this rule is an account of profits.

17
Q

Who can be a trustee?

A

Anyone who is able to own property (over 18) and is not of unsound mind

18
Q

Explain the powers to appoint trustees for a trust?

A

The power to appoint trustees is set out in the trust deed (typically by the settlor). Existing trustees have statutory powers to appoint new or replacement trustees.

Where no express appointment power exists, the beneficiaries can appoint a trustee by agreement (unless specifically excluded by the trust deed).

19
Q

What powers are conferred to trustees expressly through the trust instrument and in statute?

A

The powers to:
1) invest trust property
2) maintain or use the trust income for the education, maintenance or benefit of the beneficiaries
3) advance capital to the beneficiaries

20
Q

Explain the element of ‘self-dealing’ within the no conflict rule in further detail.

A

Trustees should not purchase trust property for themselves, regardless of whether the price is fair. The sale is voidable by the request of any beneficiary.

21
Q

What are the exceptions to the ‘self-dealing’ rule?

A

1) The trust instrument authorises it and all the beneficiaries, sui juris, authorise it
2) The purchase is pursuant to a contract or option agreed or granted before the trusteeship arose

22
Q

What are the exceptions to the ‘fair-dealing’ rule?

A

The purchase of the beneficiary interest of any beneficiary by a trustee is valid provided the trustee can demonstrate that:
1) They took no advantage of their position;
2) They made full disclosure to the beneficiary, and;
3) The transaction was fair and honest.