T9 : Trusts and Fiduciary obligations

Question 1

Trust

Answer 1

Intention > clear and specific
Object> beneficiary must be identifiable
Subject matter > trust property must be identifiable

Question 2

Fiduciary

Answer 2

one party undertakes to act in the interest of another, involves acting with loyalthy and in good faith towards somebody and serving their interests rather than your own

Question 3

Status based relationship

Answer 3

Trustee/Beneficiary
partner/fellow partner
Agent/Principle
Director/Company

Question 4

Fact based

Answer 4

where person is obliged to act in the interests of another and is entrusted with the power to affect those interests

Question 5

Fiduciary duties

Answer 5

No conflict of interests with beneficiary
No secret profits/ advantages from position
No competition with principal
No misuse of principals property

Question 6

Conflict of interests

Answer 6

same matter conflicts( members of same firm act for both parties of transaction) e.ge clark boyce vs Mouat-> must disclose COI and thus not have fiduciary duties

Fair dealing conflict: fiducairy has some personal interest in outcome of transaction they are involved in
Witten hanna vs davis> need to give independent advice
Fair dealing conflicts

Question 7

Avoiding conflicts

Answer 7

disclose: sufficient, timely and considerate
consent: obtaining consent + full disclosure> fiduciary must prove that principle was aware of fiduciary’s interests in the property and the principal consented to it
Fair price> price paid by F to P and vice versa was fair. F should suggest that principal obtain independent legal finance advice

Question 8

Duty of confidentiality

Answer 8

Separate legal obligation, not just F’s who owe them
Overlap with F duty e.g. COI
Devices to minimize risk; Chinese wall
Effectiveness = test; are clients interests protected?
Checklist> does firm have confidential info and is there a risk of disclosing confidential information?