Trusts Flashcards
Templeton v Burgh of Ayr
Trust left assets to trustor’s sister. Fee was going to Council of Ayr to REBUILD bridge when needed but council decided to RESTORE bridge. Kin held trust must fail because restoring not rebuilding - kin claim failed
Parish Council of Kilmarnock v Ossington’s Trs
Trustees can be holder of an office
Parish Council of Kilmarnock v Ossington’s Trs
Trustees can be holder of an office
Martin v Ferguson’s Trustees
‘same trustees as my brother’ - can be appointed by name or reference
Ker v City of Glasgow Bank
Can accept being appointed as trustee expressly or by implication from actings
Prolonged inaction insufficient for resignation - must be expressly in writing
RBS Plc, Petitioner
RBS was trustee - was being remunerated (not always the case that remunerated trustees can resign) - court will look at where it is in the interest of the trust (beneficiaries) for you to step down and someone replace you
McKenna v Rafique
Sheriff held so long as resignation is in writing and drawn to the attention of other trustees then there are various means by which it can be done - necessary process not clear for resignation
Ciarocca v Ciarocca
Malversation of office required
- Bad faith
- Complete inattention to duties or self-dealing
- Refusal to sign doc leading to administrative deadlock
Shenken v Pheonix Life ltd
Trustee not replaced by heirs or executors after having died
Death divests the trustee of title
Trust property passes automatically to the other trustees
McCraig’s Trs v Kirk Session of United Free Church of Lismore
Directions in private trust to install statues of family members of testarix (argued that public interest as could provide jobs for artists sculptors etc)
- Held contrary to public policy - ‘sheer waste of money’ - ‘vanity’
Aitken’s Trs v Aitken
Wanted to knock down shops (he owned) in town and put up a bronze statue of himself.
- Contrary to public policy and would have made the town ‘ridiculous’
Mackenzie v Mason and Stuart
Trustees OWN trust property but immune from private creditors of trustee
Macpherson v Macpherson
Declaration of trust: word ‘trust’ not essential
Clark Taylok and Co Ltd v Quality Site Development
Trust declaration should include:
- Trust property
- Purposes
- Beneficiaries
Allan’s Trs v Ld Adv
Declaration of trust must be intimated to at least 1 beneficiary
Marques of Lothians CB
Performance of trustee can only be at variance with ‘terms’ of trust when its exercise hasn’t been expressly prohibited
Rezac’s Exrs v Rezac’s Ex
Sale was at variance with trust purpose as intention was clear from the deed - trustees not authorised to sell the property
Thomson v Campbell
If trustees appoint agents they won’t incur liability for loss due to negligence or fraud from agent but will be if they fail to exercise due care in selection and supervision
Scott v Occidental Petrol (Caledonia) Ltd
Mustn’t give too many discretionary powers to agent - this is for trustee to exercise
Must monitor agent’s work and replace them if they perform badly
Macfarlane v Macfarlane’s Trs
Powers to advance capital: where income from trust inadequate to meet trust purposes court can authorise trustees to advance capital of trust fund to beneficiaries under the age of 18
ONLY WHEN:
Beneficiary has VESTED or CONTINGENT right to capital AND advance is NECESSARY for purposes of education and maintenance of beneficiary
Shanks v Aitken
Trustees with personal interest can’t take part in vote
Wyse v Abbott
Lack of consultation amongst trustees made appointment of additional trustee invalid
Malcolm v Goldie
Consultation unnecessary where trustee uncontactable
Raes v Meek
Duty of care: same degree of diligence that an ordinary man would exercise of his own affairs
