6.5 Liability of Trustees Flashcards

1
Q

What are the expectations placed on trustees?

A

Trustees are expected to carry out their duties in accordance with the terms of the trust instrument (or the law) and exercise their powers properly

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2
Q

What is a breach of trust?

A

Trustees fail to carry out their duties, either by omission or carrying out an act, which result in a loss suffered by the trust.

The trust is required to be compensated fully for any loss caused by the trustee’s breach

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3
Q

How are trustees liable for breach of trust?

A

Trustees are personally liable for any loss suffered by the trust. There is joint and several liability for a breach of trust to beneficiaries where breach has led to a loss to the trust fund.

Trustees are also liable in respect of breaches of contract and tort involving trust property (they can be indemnified out of the trust property though)

Trustees are personally liable to the beneficiaries for profits gained from breach of trust or loss caused to the trust.

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4
Q

Name some examples of situations where trustees can commit a breach of trust?

A

1) [Wrong recipient] Where they pay trust money to the wrong person

2) [Profit from position] By making a profit out of their position

3) [Unauthorised investments] By investing trust funds in unauthorised investments

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5
Q

What are the two distinct remedies available to beneficiaries when there is a breach of trust and the trust suffers a loss?

A

1) [Tracing] Recovering trust property through tracing: Property that still exists and is identifiable in the hands of the trustees or other persons who have received it

2) [Damages] Claiming damages from the trustee should attempt to recover trust property prove unsuccessful / partly successful

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6
Q

What is the rule with recovering trust property and Equity’s darling?

A

Property cannot be recovered from a bona fide purchaser for value without notice that it was received in breach of trust

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7
Q

What is the rule with trustees and compensating for loss?

A

The trustee is required to compensate the trust fully for any loss caused. They are liable to place the trust in the position that it would have been in had no breach been committed.

(No need to look into causation, foreseeability, remoteness)

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8
Q

How does the court determine the liability of trustees when a breach of trust occurs?

A

Trustees are jointly and severally liable for a breach of trust to their beneficiaries where that breach has led to a loss to the trust fund.

N.B: A trustee will only be liable for their own defective acts or omissions

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9
Q

What are some defences available to trustees for a breach of trust? (5 defences)

A

1) Exemption clause in the trust deed
2) Limitation - proprietary claims are not time-barred
3) Laches (Delay)
4) Consent of the beneficiaries
5) Statutory relief under the TA 1925

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10
Q

Explain the defence of an exemption clause in a trust deed for a breach of trust

A

An exemption clause in the trust deed may protect a trustee who commits a breach of trust.

However, they would still have needed to perform their duties honestly, in good faith and for the benefit of the beneficiaries.

Not available if trustee was aware (had knowledge) that their acts were contrary to interests of the beneficiaries (or recklessly indifferent to those interests)

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11
Q

Explain the defence of limitation for a breach of trust

A

Limitation period has passed - claim is time-barred.

Breach of trust claims - limitation period is 6 years from the date of breach, which is when the right of action accrues.

Period starts when beneficiary’s interest has vested (e.g upon turning 18).

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12
Q

What is the exception to the limitation rule for breach of trust?

A

No limitation period applies where the trustee has acted fraudulently or taken trust property for themselves.

Beneficiaries will not be precluded from taking action in order to recover trust property in these circumstances

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13
Q

Explain the defence of laches (delay) for a breach of trust

A

Can be used even where no limitation period applies.

Equitable doctrine - court will use discretion where there has been an unreasonable delay on the part of the claimant in making their claim and where this delay has prejudiced the trustee.

Should the judge find that the defence applies, they can refuse to allow the claim to proceed.

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14
Q

Explain the defence of beneficiary consent for a breach of trust

A

The beneficiary needs to:
- Have provided informed consent
- Given this consent freely and not been under any undue influence in providing consent
- Have attained the age of majority
- Have capacity

No need to show that the beneficiary has benefitted from the breach, although if this is the case, the court may take it into account.

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15
Q

How can a trustee benefit from statutory relief under the Trustee Act 1925?

A

TA 1925 offers statutory relief for trustees where a breach of trust may have occurred but may be justified: s61 and s62

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16
Q

Explain the provision of s61 of the TA 1925 for statutory relief

A

s61 TA 1925 Statutory Relief - If a trustee may be liable for breach of trust but has acted honestly and reasonably, and ought fairly to be excused, the court may relieve them either wholly or partly from personal liability for the same.

N.B: Provision does NOT apply if trustee is found to be negligent

17
Q

Where is the burden of proof placed to fulfil s61 TA 1925?

A

On the trustee - the trustee should prove that they acted properly, discharged their duties as any ordinary person of business would if dealing with their own property.

18
Q

Explain the provision of s62 of the TA 1925 for statutory relief

A

S62 TA 1925 Statutory Relief - Beneficiary requests in writing that the trustee commit a breach of trust

The court has discretion to use the beneficiary’s interest in the trust to indemnify the trustee who has committed a breach.

N.B: Not necessary to show that the beneficiary actually benefitted from the breach

19
Q

Explain what is meant by ‘tracing’?

A

Tracing is the process of identifying trust property as it moves through hands, whether in its original format or as a substitute asset

20
Q

What are the advantages of proprietary claims? (there is an interest in the land)

A

1) Proprietary claims offer priority to the beneficiary of a trust over any other creditors in the event of bankruptcy. This allows them to assert a claim to any increase in the value of the trust property.

2) Proprietary claims are also not time-barred

21
Q

What are the equitable proprietary remedies available?

A

1) Equitable ownership of the property
2) Equitable charge or lien
3) Subrogation to the interests of a third party creditor

22
Q

Explain how the remedy of ‘equitable ownership of the property’ works for tracing

A

Full / partial ownership depending upon the share of trust property used.

The equitable owner can force a sale of the property to recover the trust funds, even if they are only entitled to a minority share in a shared property

23
Q

Explain how the remedy of ‘equitable charge or lien’ works for tracing

A

This remedy places a hold over the property to allow the claimant to recover the value of trust money

24
Q

Explain how the remedy of ‘subrogation to the interests of a third party creditor’ works for tracing

A

Where trust funds are used to pay off a secured debt, the claimant can assume the position of the repaid secured creditor and revive the debt

25
Q

What are the 2 prerequisites for a tracing claim as outlined by Diplock’s case?

A
  • A fiduciary relationship: the trustee/beneficiary relationship
  • An equitable proprietary interest in the property being traced - beneficiaries can generally establish a proprietary interest in the property
26
Q

Where can property be traced to?

A

Into the hands of:

1) [Trustee] The trustee who has received property in breach of trust

2) [Third party with knowledge] A third party who received it with knowledge that it was received in breach of trust

3) [Innocent volunteer] An innocent volunteer who has received trust property without paying consideration and without any knowledge of the breach of trust

27
Q

When will a proprietary claim not succeed?

A

Where the property is traced into the hands of Equity’s darling (bona fide purchaser for value without notice) - good faith buyer who has purchased the property and given consideration as they are unaware that it was the subject of a breach of trust

28
Q

What is the rule with Re Hallett?

A

Where trust property is in the hands of the breaching trustee, Re Hallett gives the beneficiary priority over the interests of the wrongdoer

29
Q

What is the rule with Foskett v McKeown?

A

When the defendant mixes trust property with their own and uses the mixed funds to purchase a new asset, Foskett v McKeown allows the beneficiary to claim a proportionate share of the new asset

30
Q

What happens when there is a simple substitution of the trust asset for an alternative asset?

A

The beneficiary can choose to assert a beneficial interest over the new property (useful when this has appreciated in value).

Alternative remedy is to request a charge against the property to raise the money to reimburse the trust

31
Q

What happens where trust property has been mixed with the funds of another beneficiary?

A

Other party does not have to give priority to the claimant - their shares would be divided proportionately

32
Q

What happens where trust property has been mixed with that of an innocent volunteer?

A

The claimant can only gain a charge against the property to reimburse the trust fund

33
Q

What happens where trust property has been spent on an unsecure asset or has been dissipated?

A

It is no longer possible to trace the asset

34
Q

What are the potential defences to a tracing claim?

A

1) Equity’s darling: A claim will fail if D is a bona fide purchaser for value without notice

2) Dissipation: It will not be possible to trace the trust property if the funds have been dissipated

3) Inequitability: A proprietary claim will not be granted where it would be inequitable in all the circumstances to prioritise the claimant’s interests over those of an innocent volunteer