Running a trust: trustees duties and powers

Question 1

Which ONE of the following statements is CORRECT?
A. When trustees exercise a discretion, they must take account of the beneficiaries’ wishes.
B. Trustees must give the beneficiaries reasons if they refuse to exercise a discretion.
C. Beneficiaries can compel trustees to carry out duties but not to exercise a discretion.
E. Trustees do not have to exercise a discretion nor consider whether to exercise it.

Answer 1

The answer is C. While beneficiaries can compel trustees to carry out duties (usually by obtaining a court order), they have little or no control over the exercise of trustee powers or discretions.
A is not correct because, while trustees may choose to discuss matters with the beneficiaries as a matter of good trust administration, they do not have to. They do, however, have to act in the beneficiaries’ best interests when exercising their discretions.
B is not correct because trustees do not have to give reasons for their decisions. [The exception to this might be where a beneficiary has a legitimate expectation that a discretion will be exercised in their favour and the trustees decide differently.]
D is not correct because trustees must consider from time to time whether to exercise their discretions. Having done so, they are free not to exercise them if they wish (although trustees of a discretionary trust do have a duty to distribute the trust property to the beneficiaries; at some point, they will need to make a choice as to who is to benefit from the trust).

Question 2

Lionel (an accountant) and Stephen (an artist) are trustees of the Parker family trust. The trust is held for Diana for life, remainder to Martin and Sandra.

Which ONE of the following statements is CORRECT?
A. The trustees will be subject to the same duty of care when making investment decisions.
B. The trustees must review the trust investments from time to time and take advice unless they reasonably conclude that it is unnecessary or inappropriate to do so.
C. The trustees can invest the trust fund in accordance with their own ethical views and preferences about investments.
D. Because there is a life tenant, the trustees must only produce income from their investment of the trust fund; they do not have to consider capital growth until Diana dies.

Answer 2

The answer is B. Trustees have to take professional advice when investing and reviewing investments unless they reasonably conclude that it is unnecessary or inappropriate (e.g. because the trust fund is small and is being invested in very safe investments or the trustees are investment experts). This may apply here as Lionel is an accountant, but this will very much depend on Lionel’s qualifications and area of expertise.
A is not correct because the standard of care in s1 Trustee Act 2000 varies according to the skill, experience and professional qualifications of the trustee. As an accountant, Lionel is likely to be judged to a higher standard.
C is not correct because although, under s3 Trustee Act 2000, trustees can invest as though they were absolutely entitled to the trust fund, their duty is to get the best financial return for beneficiaries. This means setting aside their own social, economic, and political views (unless an ethical concern is likely to yield as good a return as a more dubious investment vehicle).
D is not correct because the trustees must act impartially between all the beneficiaries when investing the trust fund. When investing, they will need to strike a balance between the need for income for the life tenant and capital growth for the remaindermen.

Question 3

Under Grandmother’s will, trust assets worth£90,000 producing £4,500 per annum income are being held for such of three grandchildren Angela (aged 18), Barry (16) and Cathy (14) as attain 21. The will does not vary any of the trustees’ statutory powers. Grandmother died in 2013.

Which one of the following statements is CORRECT?

A. Angela should be receiving £1,500 per annum income.
B. Angela ought to have been paid half her entitlement, i.e., £15,000, on her 18th birthday
C. Angela should be receiving £4,500 per annum income.
D. Angela gets nothing until she reaches 21.

Answer 3

The answer is A. Under s31 Trustee Act 1925, once Angela reached 18, she should be paid the current income from her share of the trust income i.e., one third of £4,500 (not all the income earned by the trust, so C is not correct). The trustees have no discretion over this.
B is not correct because while the trustees could make an advancement of capital to Angela under s32 Trustee Act 1925, this is entirely a matter for their discretion.
D is not correct because while she will only obtain a vested interest in the capital at 21, statute provides for advancements before she is actually entitled.

Question 4

Vikram and Zara are trustees of the Begum family trust. Vikramwants to retire. There are no relevant provisions in the trust instrument.

Which ONE of the following statements is CORRECT?
A. Vikram could retire under s39 Trustee Act 1925.
B. Vikram could retire under s36 Trustee Act 1925 and there would be no need to appoint a replacement trustee.
C. Vikram could retire under s36 Trustee Act 1925. Zara, as a continuing trustee, and Vikram, if he is willing, would have to appoint a replacement.
D. Vikram could retire under s36 Trustee Act 1925. Vikram would have to appoint a replacement.

Answer 4

The answer is C. S36 lists various grounds on which trustees can be replaced and retirement is one such ground. If the trust instrument does not nominate the person who should make the appointment, it will be the ‘continuing trustees’ who, in this case would be Zara (and Vikram if he is willing to join in).
A is not correct because s39 does not apply because, after retiring, Vikram would not leave two trustees.
B is not correct because s36 requires the outgoing trustee to be replaced by the appointment of a new trustee.
D is not correct because Vikram cannot appoint the new trustee on his own

Question 5

Trustees are holding on trust for Mina for life, remainder to Chadni.

Is the following statement TRUE or FALSE?

Under s. 32 of the Trustee Act 1925, the trustees may make an advancement of capital to Mina if Chadni consents.
1. True
2. False

Answer 5

The statement is FALSE. The trustees may not make an advancement of capital to the life tenant under s.32 of the Trustee Act 1925 because life tenants are not ‘entitled to the capital of the trust property’ as required by the section.

Question 6

Trustees have decided to delegate their investment duties to a financial adviser. They seek your advice on whether they will be liable if the value of the trust fund declines because the adviser is negligent.

Which ONE of the following statements is CORRECT?
A. The trustees will not be liable for the loss caused by the adviser under any circumstance
B. The trustees will be vicariously liable for the adviser’s negligence.
C. The trustees will be liable for any loss caused by the adviser because they are not allowed to delegate their investment duties.
D. The trustees will be liable for the advisor’s negligence if they fail to review the advisor’s work and this failure causes loss to the trust fund.

Answer 6

The answer is D. Trustees will not be liable for the defaults of an agent unless the trustees have breached their own duties in relation to the appointment of that agent and these breaches have caused loss to the trust. These duties include, inter alia, the appointment being made in writing, the agent being given details of the trust and written guidance from the trustees on how to undertake their investment role, and the trustees regularly reviewing the arrangement and the work of the agent in compliance with the arrangement.
A is not correct because trustees may be liable for the default of the agent if they have breached their own duties in relation to the appointment of that agent.
B is not correct because s23 Trustee Act 2000 provides that trustees are not vicariously liable for an agent’s defaults.
C is not correct because the trustees have a power to delegate their investment duties under the Trustee Act 2000.

Question 7

Beneficiaries are entitled to see “trust documents”.

Which ONE of the following statements is NOT CORRECT?
A. Beneficiaries are entitled to see the document which created the trust
B. Beneficiaries are entitled to see documents which show how the trust fund is invested.
C. The trustees are not required to disclose a settlor’s letter of wishes to the beneficiaries.
D. Beneficiaries are never entitled to see documents which record the trustees’ deliberations about whether to exercise a power or not.

Answer 7

The answer is D (you were asked to identify the incorrect statement). The statement is not correct because, while beneficiaries are not entitled, as of right, to see documents which show the details of the trustees’ decision-making process, they can apply to the court for an order for disclosure (see Schmidt v Rosewood). The court may order the disclosure of the relevant documents if they believe it is in the interest of the proper administration of the trust (for instance, where there is evidence that the trustees are acting in breach of trust).
The document that created the trust as well as details of how the trust fund is invested are classed as ‘trust documents” the beneficiaries are entitled to see (A and B are correct statements).
A non-binding letter of wishes from the settlor or testator to the trustees is guidance as to how the settlor/testator would like the trustees to exercise their discretions. As such, it is a document which assists in the trustees’ decision-making process; the trustees are not required to disclose it to beneficiaries (C is a correct statement).

Question 8

Which ONE of the following statements is TRUE?
A. The settlor is always the person who appoints replacement trustees.
B. There is no theoretical maximum limit to the number of acting trustees of a private trust of land.
C. A trustee who remains out of the UK for 10 months can be retired from the trust against his will.
D. If all the beneficiaries are legally competent, in agreement and collectively absolutely entitled, they can require a trustee to retire

Answer 8

The answer is D. S19 of the Trust of Land and Appointments of Trustees Act 1996 (“TOLATA”) provides that, where no person is nominated by the trust instrument, if these specific circumstances exist, the beneficiaries can direct that an existing trustee retire (and that a replacement trustee be appointed).
A is not correct because while the settlor may have reserved power to appoint replacement trustees going forward, more often than not the settlor does not do so. The appointment is normally made by the “continuing trustees” under s36 Trustee Act 1925.
B is not correct because there is a maximum of four trustees of a trust of land. (There is no theoretical maximum for a trust of personalty, but practically more than two or three trustees will make administration of the trust rather unwieldy.)
C is not correct because a trustee has to remain out of the UK for 12 months before being retired from the trust against their will.

Question 9

Which ONE of the following is NOT a duty imposed on trustees under general law in relation to their investment of the trust fund?
A. A duty to consider the suitability of investments and the diversification of those investments.
B. A duty to ensure that the value of the trust fund does not decrease.
C. A duty to seek professional advice before investing unless it is reasonable not to do so.
D. A duty to review investments held in the trust from time to time.

Answer 9

The answer is B. Trustees have to ensure the best financial return in the investment of the trust fund. However, as with all investment, it is possible that the trust investments could fall in value due to market events. The standard of care in relation to investment is such care and skill as is reasonable on the circumstances (s1 Trustee Act 2000). Provided trustees have met this standard of care and complied with their other investment duties under the Trustee Act 2000 in their decision-making process, they will not be held liable for such market fluctuations.
A and D are duties imposed on the trustees under s4 Trustee Act 2000.
C is a duty imposed on the trustees under s5 Trustee Act 2000.

Question 10

Tracy and Tommy are trustees of a family trust. Tracy is going abroad for six months and wants Jenny to take over the trusteeship for that period. Jenny agrees to do the job.

Is the following statement TRUE or FALSE?

Tracy will have to resign her trusteeship, and Jenny will have to be appointed trustee in her place. When Tracy returns, the reverse will be done.
1. True
2. False

Answer 10

The statement is FALSE. S25 Trustee Act 1925 enables a trustee to delegate the entire trusteeship role to an attorney for a period not exceeding 12 months. Tracy will continue to be a trustee, but Jenny can act as her attorney while Tracy is abroad. Tracy will remain liable to the beneficiaries if Jenny breaches any duty which causes loss to the trust.

Question 11

Samuel created a trust in 2017 in which he gave £325,000 to trustees to hold on trust for Timothy, Ursula, and Victoria provided they attain the age of 25. The trust did not vary the trustees’ statutory powers. Timothy is currently 26, Ursula 21, and Victoria 17.

Which ONE of the following statements is CORRECT?
A. The trustees have a discretion to apply the trust income and advance trust capital to Timothy.
B. The trustees must accumulate all the trust income.
C. The trustees can give Ursula the whole of her share of the trust capital now.
D. The trustees have a discretion to apply the income for the maintenance, education or benefit of Ursula and Victoria.

Answer 11

The answer is C. S.32 Trustee Act 1925 applies as there is no variation of the statute in the trust. The trust was created after 2014 so the whole of Ursula’s share of the trust could be advanced to her (for a purpose that was for her advancement or benefit).
A is not correct because Timothy satisfied the contingency when he attained the age of 25. He is now absolutely entitled to one third of the capital of the trust and any income arising from it. The trustees must pay both to him if he asks for it; they no longer have a discretion.
B is not correct because under s31 Trustee Act 1925, both Timothy and Ursula have a right to the income on their respective shares of the trust fund. This income cannot be accumulated. Only the income from Victoria’s share of the trust, which is not applied for her maintenance, education of benefit must be accumulated.
D is not correct because although the trustees have a discretion under s31 Trustee Act 1925 to apply income for Victoria’s maintenance, education, or benefit while she is a minor, the trustees must pay income to Ursula as she is over the age of 18.

Question 12

Trustees are holding on trust for “such of Christopher and Aurora Ridgway who attain the age of 25”. Christopher and Aurora are twins. The trust fund comprises company shares and money in bank and building society accounts. The trust instrument contains no administrative powers relevant to this question.

Which ONE of the following would be a breach of trust by the Trustees?

A. The trustees buy a house in York for Christopher and Aurora to live in.
B. The trustees buy a house in Leeds to let to students.
C. The trustees buy a house in Spain to let to tourists
D. The trustees buy a shop in Sheffield for Christopher and Aurora to run their coffee shop business.

Answer 12

The answer is C. S8 Trustee Act 2000 allows trustees to buy land as a home for beneficiaries (A), as an investment (B) and for any other purpose (D). However, the land must be situated in the UK. Therefore, (unless permitted by the trust instrument) investing in land in Spain is not an authorised investment, would be unauthorised and therefore a breach by the trustees.

Question 13

Is the following statement TRUE or FALSE?

In conducting the administration of the trust, the trustees must exercise such care as objectively comparable to how an ordinary, careful businessperson would manage his or her affairs.

1. True
2. False

Answer 13

The statement is TRUE. This is the principle derived from the case of Speight v Gaunt which details the standard of care which will be applied to trustees in the general administration of the trust. Although it is an objective standard, paid trustees with professional expertise will be judged by a higher standard. This standard of care sits alongside the duty of care in relation to investment activities detailed in s1 Trustee Act 2000

Question 14

1. A woman died in 2013 and left her estate on trust for her children if they should attain the age of 21. Her son is aged 19 and her daughter is aged 18. The trust instrument contained no powers relevant to the matter. The son is a talented singer and wants money from the trust to pay his fees and living expenses while he attends the Royal School of Music.

Which of the following best explains the trustees’ position regarding the son’s request?

A. The son cannot have any money from the trust until he attains the age of 21.
B. As the purpose is for his advancement or benefit, the trustees must pay the son his share of the trust fund now.
C. As he is over 18, the son can demand that trustees pay him his share of capital now.
D. The trustees have a discretion to pay trust capital up to the amount of the son’s half-share provided the daughter consents.
E. The trustees have a discretion to pay trust capital up to the half of amount of the son’s share as the stated purpose would be for his advancement or benefit.

Answer 14

Option E is correct. The trustees can make a capital advancement under s32 Trustee Act 1925 because the son has an interest in capital and the proposed use is for his benefit. As the trust was created before 1 October 2014, they can advance up half of the amount of the son’s potential share of the trust.
Option A is wrong because, in certain circumstances, s31 and s32 allows the trustees to give the son money from the trust before they attain the requisite contingency age.
Option B is wrong because, although the stated purpose is for the son’s advancement or benefit, his interest in the trust fund remains contingent as is he under 21. The trustees have a power in s32 Trustee 1925 to advance capital prior to this age, but this is at their discretion. Additionally, as the trust was created before 1 October 2014, they could only advance up half of the amount of the son’s potential share of the trust.
Option C is wrong because s32 gives trustees a complete discretion; the son cannot ‘demand’ an advancement regardless of his age.
Option D is wrong; trustees require consent only from a beneficiary with a prior interest (i.e., a prior life tenant) and the daughter does not have a prior interest.

Question 15

A man died six years ago leaving his estate on trust for her children, if they should attain the age of 21. His daughter is aged 19 and his son is aged 18. The trust instrument contained no powers relevant to the matter.

Which of the following best describes the position regarding the trust income?
A. All the income earned must be accumulated as the children are under 21 years of age.
B. The trustees have a discretion to pay trust income for the maintenance, education, or benefit of the children.
C. The trustees must pay the trust income to the children in equal shares.
D. The children do not have an interest in trust income.
E. Any income not paid for the maintenance, education, or benefit of the children must be accumulated.

Answer 15

Option C is correct. Under s31 Trustee Act 1925, trustees can apply trust income for the maintenance, education, or benefit of infant beneficiaries (a power). However, the children are both over the age of 18. Once the beneficiaries attain the age of 18, the trustees are under a duty to pay them their respective shares of trust income; the discretion ceases (so options A and B are wrong).
Option D is wrong because the children have interests in trust income as there is no life tenant with a prior interest in the income.
Option E is wrong because all the income must be paid out and none will be accumulated

Question 16

There are two trustees of a substantial trust fund. There are three beneficiaries of the trust fund aged 21 years, 18 years, and 12 years respectively. The trust instrument contains no provisions regarding removal and appointment of trustees.The beneficiaries have found out that one of the trustees has been made bankrupt.

Which of the following best describes the position in light of the trustee’s bankruptcy?
A. The bankrupt trustee will be automatically removed as a trustee to avoid creditors claiming the trust property.
B. The beneficiaries can remove the bankrupt trustee as a trustee on the ground that they are unfit to act.
C. The bankrupt trustee can retire so that the other trustee can continue as the sole trustee.
D. The beneficiaries cannot require the bankrupt trustee to retire.
E. The other trustee can remove the bankrupt trustee and continue as the sole trustee.

Answer 16

D is correct. As the trust instrument contains no provisions regarding the removal and appointment of trustees, the beneficiaries would have to rely on s19 Trust of Land and Appointment of Trustees Act 1996 which provide the beneficiaries with a power to require a trustee to retire. However, s19 cannot be used here as all the beneficiaries are not adults.
Option A is wrong because a bankrupt trustee can continue to act until he is removed. Creditors would not be able to claim the trust property.
Option B is wrong because replacements under s36 Trustee Act 1925 on the ground of being unfit to act can only be made by the continuing trustees, not the beneficiaries.
Option C is wrong because, while s39 Trustee Act 1925 does allow a trustee to retire without replacement, at least two trustees must remain after the retirement.
Option E is wrong because, while s36(1) Trustee Act 1925 does allow the other trustee to remove the bankrupt on the grounds of being unfit, a replacement trustee must be appointed.

Question 17

A grandmother died five years ago. In her valid will, she left her entire estate to trustees on trust “for my son for life, remainder to such of my grandchildren who attain the age of 25 and if more than one equally.” Her son is now aged 55 years, her grandson and granddaughter are 23 years and 18 years respectively. The trustees have been asked whether they can give some trust income to the granddaughter to pay for dancing lessons. The grandson has consented to the payment being made.

Can the trustees pay this income to the daughter?

A. Yes, because it is for her maintenance, education, or benefit.
B. Yes, because she is old enough to give a good receipt.
C. Yes, because the grandson has consented.
D. No, because she has no interest in the income.
E. No, because she is under 25 years of age

Answer 17

Option D is correct. While the son, the life tenant, is alive, all the income must be paid to him. S31 Trustee Act 1925 does not apply to the granddaughter at the moment because she is not entitled to the trust income (so Option A, Option B, and Option C are all wrong).
Option E is wrong because her age is not the reason that the trustee cannot pay the income to the granddaughter at the moment

Question 18

There are two trustees of a trust. There are three beneficiaries aged 25 years, 21 years, and 18 years respectively. One of the trustees has been working outside the UK for the last 15 months and has not taken part in the management of the trust. All beneficiaries want to remove her. There are no relevant provisions in the trust instrument.

Which of the following best describes the beneficiaries’ position?
A. The beneficiaries can remove the trustee on the ground that she has been outside the UK for more than 12 months.
B. The beneficiaries can serve a request on the absent trustee to retire.
C. The beneficiaries cannot apply to the court to remove the trustee because such applications are only available to the trustees.
D. The beneficiaries do not need to take any action as the trustee automatically ceased to be a trustee once she had been outside the UK for more than 12 months.
E. The beneficiaries can only remove the absent trustee with the consent of the other trustee.

Answer 18

B is correct. As the beneficiaries are all alive, ascertained, over 18 and in agreement, under s19 Trusts of Land and Appointment of Trustees Act 1996, the beneficiaries have a power to remove (and replace) a trustee.
Option A is wrong because s36 Trustee Act 1925 cannot be used by beneficiaries; the replacement has to be achieved by the trustees.
Option C is wrong because beneficiaries can apply to court to replace a trustee if it is difficult, inexpedient, or impractical to do so without the court’s assistance.
Option D is wrong because, although absence for this length of time is a ground for removal under s36, the other trustees must follow the s36 procedure for removal; it is not automatic.
Option E is wrong because the beneficiaries are able to exercise their power under s19 TOLATA 1996 without the consent of the other trustees.

Question 19

The beneficiaries of a substantial trust fund have found out that 12 months ago,the trustees of the fund, both of whom are solicitors, delegated their investment duties to a stockbroker. The beneficiaries have seen the formal letter of appointment, but the trustees have confirmed that they have not met or spoken with the stockbroker since his appointment. The stockbroker has made some disastrous decisions and the trust investments are now almost worthless.

Which of the following best describes whether the trustees might be liable to the beneficiaries or not?
A. The trustees are liable for wrongly delegating to the stockbroker as they are professional trustees and could have done the investment work themselves.
B. The trustees are liable for wrongly delegating to the stockbroker as they failed to get the beneficiaries’ informed consent to the appointment.
C. The trustees are liable as they have failed to review the appointment of the stockbroker.
D. Trustees are never liable for an agent’s defaults.
E. The trustees are not liable to the beneficiaries as the stockbroker was appointed in writing.

Answer 19

Option C is correct. Trustees can be liable for loss caused by the agent’s defaults if they have breached their own duties in relation to the appointment (s23 Trustee Act 2000). Under s.22 Trustee Act 2000, trustees have a duty to keep the arrangements with the agent under review. By failing to meet or speak with the stockbroker since the appointment, the trustees have breached this duty.
Option A is wrong because professional trustees are able to delegate even though they could have done the work themselves.
Option B is wrong because the trustees have a power to delegate under the Trustee Act 2000 which they can exercise without needing the consent of the beneficiaries.
Option D is wrong because trustees can be liable for loss caused by the agent’s defaults if they have breached their own duties in relation to the appointment (s23 Trustee Act 2000).
Option E is wrong because merely appointing the agent in writing as required by s15 Trustee Act 2000 is not enough. Under s23 Trustee Act 2000, the trustees need to comply with all their duties in relation to the appointment so as to avoid liability for the agent’s defaults.

Question 20

A family trust was established 10 years ago by will. The deceased left his residuary estate to trustees to hold on trust for his widow for life, remainder to his daughter. The will contained no provisions varying the trustees’ powers. Last month, the widow learnt to her surprise that the trustees had transferred £20,000 from the trust fund to the daughter, to help pay off her substantial overdraft. The daughter is aged 22 years.

Which of the following best describes the position regarding the transfer?

A. As the will created a discretionary trust, the trustees were entitled to make the transfer to the daughter as she was a beneficiary named in the will.
B. As the daughter has only a contingent interest in the capital of the trust fund, the trustees did not have the power to pay the £20,000 to her.
C. As the daughter is over 18, the trustees were required to pay the money to her.
D. As the transfer to the daughter was an exercise of trustee discretion, the widow cannot challenge their decision.
E. The trustees should have obtained the widow’s written consent before they transferred the £20,000 to the daughter.

Answer 20

Option E is correct. S32 Trustee Act will apply in the absence of any variation in the will. It provides the trustees with a power to advance capital to a beneficiary with an interest in the trust capital, which the daughter has. However, s32 requires that no payment be made without the written consent of any person with a prior interest. As life tenant, the widow has a prior interest; her consent was needed to allow the transfer to be made.
Option A is wrong as the trust is not discretionary. The trustees were required to apply all the income generated by the trust to the widow, preserving the capital for the daughter.
Option B is wrong for two reasons – the daughter has a vested interest in the capital of the trust; there is no condition which she has to satisfy to become entitled. Her vested interest is merely postponed until the widow dies. In any event, even if her interest was contingent, s32 Trustee Act 1925 gives trustees power to advance capital to any beneficiary with an interest in capital, regardless of whether the interest is vested or contingent.
Option C is wrong because a one-off payment would be regarded as a capital advancement. Although the daughter has an interest in the capital, she does not have a right to this capital until the widow dies. Under s32 Trustee Act, the trustees have a power to advance capital, but they do not have to.
Option D is wrong because the trustees have exercised their discretion improperly. The trustees have breached their duty to the widow under s32 in failing to obtain her consent to the transfer to the daughter. The widow will have been prejudiced by the loss of capital from the trust fund (a reduction in her income) and could take action.

Question 21

A woman is about to undergo surgery and has been advised that she will need to take at least six months off work to recover. The woman is a trustee and is worried about being able to perform her functions as trustee while she is recovering from the surgery. There is nothing in the trust deed that says anything about appointing someone else to step into her role.

Which of the following best describes whether she can appoint someone else to step into her role while she is unable to perform her functions?
A. She can appoint an attorney by telephone and should take care about who she appoints.
B. She can appoint an attorney by deed and should take care about who she appoints.
C. She can appoint an attorney by deed and does not need to worry about who she appoints.
D. She cannot appoint an attorney as she was personally chosen by the settlor to be a trustee.
E. She cannot appoint an attorney as there is nothing in the trust deed that allows this.

Answer 21

Option B is correct. The trustee can (and should) appoint an attorney to carry on her role while she is indisposed. That appointment must be made by deed. As the trustee will be automatically (vicariously) liable for any defaults of the attorney, she should take great care in selecting someone she thinks will do a good job.
Option A is wrong. The appointment of an attorney must be made by deed (TA 1925, s 25) and cannot take place over the telephone.
Option C is wrong. The trustee will be automatically (vicariously) liable for any defaults of the attorney she appoints, so she must take care when making her selection.
Option D is wrong. The fact that she is an original trustee, chosen personally by the settlor, does not prevent her from appointing an attorney.
Option E is wrong. A trustee can use the power granted under s 25 of the TA 1925 to appoint an attorney regardless of whether or not the trust deed contains any express provision on the matter.

Question 22

The trustees are holding property on trust valued at £500,000 for the settlor’s grandchildren who reach the age of 25 years. There are currently two grandchildren, both under the age of 25 years. There are no relevant express provisions in the trust deed.
The grandchildren are unhappy with the way that the trustees have run the trust to date. In particular, two years ago, each grandchild requested that the trustees advance the sum of £10,000 to them for different purposes. The trustees discussed these requests at a meeting (‘the Advancement Meeting’) and agreed to advance £10,000 to one grandchild, but not the other. The grandchildren are starting to make various demands of the trustees.

Which of the following best describes what documentation (if any) the trustees must provide to the beneficiaries?

A. The trustees must, upon request, supply the beneficiaries with copies of the trust deed, accounts, schedule of investments and the minutes of the Advancement Meeting.
B. The trustees must, upon request, supply the beneficiaries with copies of the trust deed, accounts, and schedule of investments.
C. The only document to which the beneficiaries are entitled is the minutes of the Advancement Meeting.
D. The trustees need not supply any documents or information to the beneficiaries.
E. The trustees need not supply the minutes of the Advancement Meeting, but in the interests of fairness must give reasons as to why they advanced capital to one beneficiary but not the other.

Answer 22

Option B is correct. The beneficiaries are entitled to see the trust deed, accounts, and information about investments as of right. The trustees cannot refuse to hand over such documents.
Option E is wrong. The trustees are under no duty to give reasons for their decisions (and this is unlikely to be a case where the beneficiaries have a legitimate expectation that such reasons be given).
Options A and C are wrong for similar reasons. The beneficiaries are not entitled to documents that record why trustees exercised their powers in a particular way, such as the minutes of the Advancement Meeting (although the beneficiaries could go to court and attempt to secure the disclosure of those minutes under the court’s inherent supervisory jurisdiction).
Option D is wrong. The beneficiaries are entitled as of right to those documents listed in option B.

Question 23

An independent financial adviser has been appointed a trustee for a management consultant for life and a student in remainder. The trust fund has been valued at more than £900,000. The trustee uses all of the trust fund to purchase shares in a large international company headquartered in India whose shares trade on the Dow Jones (New York stock exchange). The company’s share-value has recently posted significant growth and the company has a reputation for paying significant dividends to its shareholders.

Which of the following statements best describes why the trustee is likely to be in breach of trust?

A. The trustee is only permitted to purchase shares in UK companies.
B. Shares are not an authorised form of investment.
C. The shares are not a suitable form of investment.
D. The shares do not represent a diverse form of investment.
E. The trustee failed to take proper investment advice before purchasing the shares.

Answer 23

D is correct. When purchasing investments, trustees must have regard to the standard investment criteria – suitability and the need for diversification. In this case, using the entire trust fund to purchase shares in one company does not respect the need for diversification. If the company gets into financial difficulties, the value of the trust fund may be materially and adversely affected.
Option A is wrong. The general power of investment contained in s 3 of the TA 2000 is not limited to the UK. Trustees can purchase investments based in any part of the world (so long as the trustee complies with the other investment duties in this chapter). This is different to purchasing land, where the power contained in s 8 of the TA 2000 is limited to land in the UK.
Option B is wrong. Shares are capable of producing both capital and income returns and are therefore a classic form of authorised investment.
Option C is wrong. Shares, in general, are a good investment for this trust. The trustee must consider the income needs of the management consultant and the capital needs of the student. Shares are capable of meeting these two needs. Focusing on the company itself, there is nothing on the facts to suggest that the company is a bad investment – it has a history of capital growth and dividend payments. The real issue here is one of diversification.
Option E is wrong. Whilst generally it is the case that trustees must take proper advice before purchasing investments, they do not need to do so when they reasonable conclude that it is unnecessary to do so. The trustee is an independent financial adviser, and it is reasonable to conclude that the trustee can take investment decisions without needing assistance from someone else.