Protection of trustees Flashcards
What are trustees options for protections at the outset of the trust?
Ouster clause
Exemption clauses
Trustee liability insurance
What can exclusion clauses/trustee liability insurance not protect against?
Fraudulent breach of trust
What options for protection of trustees are there during the administration of the trust where there is uncertainty as to powers or duties?
- legal advice
- court directions
- s48 AJA 1985 application
- surrendering discretion to court
- fully informed consent of beneficiaries
When will the high court likely not authorise a s48 AJA application?
Dispute
When can the trustees surrender discretion to the court?
Specific problem requires addressing
What is the requirement for seeking the fully informed consent of the beneficiaries?
beneficiaries are known, locatable, over 18 and of sound mind
What are trustees options for protection where there are unknown beneficiaries?
- s27 notice
- retain funds
- missing beneficiary insurance
- obtaining indemnity from beneficiaries
What are trustees options for protection where there are missing beneficiaries?
- Benjamin order
- retain funds
- payment into court
- missing beneficiary insurance
- obtaining indemnity from beneficiaries
What are the requirements for a benjamin order?
o Must make full enquiries to establish true position and
o Demonstrate no reasonable prospect of knowing true position without disproportionate expense
What are a disappointed beneficiary’s options when a benjamin order has been made?
Claim against other beneficiaries
What are the requirements for a s27 notice?
published 2 months before distributing and placed in:
- London gazette
- Local newspaper to any land held on trust
- Any other newspaper appropriate
What claims may be made against third parties after a breach occurs?
- negligent advice from lawyer/financial adviser
- contribution from other liable parties
