Trusts Flashcards
What is the definition of a trust?
A fiduciary relationship in which a trustee holds legal title to specific property under a duty to manage, invest, safeguard and administer the trust assets and income for the benefit of designated beneficiaries, who hold equitable title
What are the 2 types of trust?
Express
Implied
What are the 2 types of express trusts?
Private and Charitable
What are the 3 types of private trusts?
Fixed Trusts, Discretionary Trusts and Purpose Trusts
What are express trusts?
Created by express intention of the settlor
What is an inter vivos trust?
A trust made during the settlors lifetime
What is a testamentary trust?
Declaring a trust in their will
How can an inter vivos trust be created?
By declaring themselves a trustee of a particular property or transferring property to one or more trustees to hold on trust
What is a private trust?
Trusts created for the benefit of certain ascertainable persons
What is a fixed trust?
Exists where the interests of the beneficiaries are defined by the settlor
What is an example of a fixed trust?
To T on trust for my husband for life, and at his death my children in equal shares.
What is a discretionary trust?
The trustee is given discretion in how to distribute the trust property, usually among members of an identifiable class
What is an example of a discretionary trust?
To T on trust for my children in such shares as T shall in his absolute discretion decide.
What is a purpose trust?
One set up for a purpose rather than for people.
What purpose trust will usually fail?
One that does not have defined boundaries
What is another name for purpose trusts?
Honarary trusts
What is an example of an honarary trust?
Trusts for the maintenance of particular animals.
What is a charitable trust?
Created for the benefit of an indefinite class of persons or the public in general
What is an example of a charitable trust?
A trust providing scholarship funds for needy students
What is an implied trust?
Where the intention of the settlor is not expressed, but a trust is presumed in equity to ensure an equitable result is received.
What are the 2 types of implied trusts?
Resulting trust and Constructive trust
When will a resulting trust arise?
- An interest under an express trust fails
- An express trust fails to exhaust the beneficial interest; or
- A person makes a voluntary transfer or purchase in the name of another
Where does the beneficial interest lie with a resulting trust?
Reverts to the settlor or the settlor’s estate
What is a constructive trust?
An equitable remedy imposed by the court to prevent the unjust enrichment of one person at the expense of another as a result of wrongful conduct.
What are the three certainties?
Certainty of intention
Certainty of subject matter
Certainty of beneficiaries
If one of the 3 certainties is missing, what effect with this have on the trust?
It will fail
What is the certainty of intention to create a trust?
The settlor must show by written or spoken works, or by conduct that they intend to subject the trustee to a binding obligation
What extent of communication is required to show certainty of intention?
No particular words are required and communication to the beneficiaries is not intended.
When must an intention to create a trust be expressed?
When the settlor owns the property prior to its transfer to another.
When must the settlor intend a trust to begin for a trust to be effective?
Immediately
Are precatory expressions enough to create a trust?
Not usually
What are precatory expressions?
Expressions of a hope, wish or mere suggestion that the property can be used in a certain way.
When would precatory expressions be considered as to the creation of a trust?
When the words are written in a professionally drafted trust deed, the courts will consider the document as a whole in order to determine the settlor’s meaning.
Can informal words or actions show intention to create a trust?
Yes however there is an issue with proof.
How could informal words or actions be proved to show intention to create a trust?
When there are independent witnesses, irrefutable evidence of conduct or words that were repeated frequently over a period of time
What type of repeated phrases would be considered as informal words that would show the intention to create a trust?
Your money is my money
Joint withdrawals from a sole bank account
Does the intention to create a trust need to include the word trust?
No, equity will look at the intention of the settlor, not the words used.
If the wording to create a trust is ambiguous or capable of different meanings, how will this be treated?
A trust is likely not created
What happens when a trust is void for uncertainty of intention?
The property passes as an outright gift to the person who would have been the trustee.
What is certainty of subject matter?
It must be clear what property is bound by the trust
Will fractional shares be enough to show certainty of subject matters?
Sometimes, if the trust is for a intangible asset yes (50% of shares) if for tangible assets will fail unless the trust have been segregated from the rest of the stock.
Can the trust property be property you expect to inherit at a later date?
No, future interest may be held in trust but an interest not yet in legal existence cannot be held in trust.
What are the requirements regarding beneficial entitlement?
This must be certain - e.g. reasonable income
What happens to the property if a trust is void for uncertainty?
The property reverts to the settor
What is the certainty of objects?
The beneficiaries of a trust must be defined with sufficient certainty
How can the beneficiaries of a trust be identified?
By name or referring to a class of beneficaries e.g. employees of a company
What would not be clear enough to satisfy the certainty of objects requirement?
My friends
What is the test for certainty of objects in a fixed trust?
Complete Lists Test
What is the complete lists test?
The trustee must be able to draw up a complete list of beneficiaries in order to complete the task and discharge their obligation.
Does the complete lists test require the beneficiaries to be in existence at the date of the trust?
Unascertained beneficiaries can be included (unborn baby) as long as they are ascertainable by the time their interests come into enjoyment
What requirements does the complete list have when there is a group of people who are described and not named?
The beneficiaries description must be conceptually certain and evidential certainty.
What is the test for certainty of objects in discretionary trusts?
Postulant test
What is the postulant test?
Whether it can be said with certainty that any given individual is or is not a member of the class.
What requirement within the description of the class of beneficiaries is required in the postulant test?
The description must be conceptually certain
Will evidential uncertainty cause a discretionary trust to fail?
No because the potential beneficiary who cannot prove they are within the class will have no right to be considered by the beneficiaries
Will the trustees inability to contact the potential beneficiaries affect the validity of a discretionary trust?
No, the fact the trustees are aware of some beneficiaries they cannot trace will not affect the validity
When will a discretionary trust fail?
If it is ‘administratively unworkable’ - where the objects are top wide to form a class
A discretionary trust will fail if it there is capriciousness - what is this?
Where there is a very large number of potential beneficiaries or when there is nothing to link the members of the class so as to enable the trustees to make a sensible choice between them
What is the remedy if the objects are uncertain in a trust?
A resulting trust in favour of the settlor or settlor’s successors is presumed
What is the beneficiary principle?
A trust cannot exist without someone to enforce it - it must have ascertainable human beneficiaries
What type of trusts does the beneficial principle not apply?
Charitable trusts - they are enforceable by the Attorney General on behalf of the public
Would a trust fail because a trustee dies?
No
Would a trust fail because a trustee refuses to accept appointment?
No
Would a trust fail if a trustee resigns?
No
What will happen if a trustee dies, resigns or refuses to act in a trust?
The court will appoint a successor trustee unless it was clear the settlor intended the trust to continue only so long as a particular trustee served
When will a trust be invalid for trustees?
When no trustee is appointed at the creation of the trust
What qualifications must a person have in order to be a trustee?
Anyone who has capacity to acquire and hold property for their own benefit and must not be a minor
What is the minimum number of trustees allowed?
There is none
What is the maximum number of trustees allowed?
There are none.
What are the benefits of appointing more than one trustee?
Can observe one another behaviour and highlight a breach of trust
How must decisions be made by the trustees?
In unanimity unless the trust deed allows for a majority
When are their restrictions on the number of trustees allowed?
In a trust for land
What are the minimum and maximum number of trustees allowed for a trust of land?
2-4
What are the rules against perpetuity?
Prevent a settlor from creating interests under trusts which will take effect long into the future, thereby tying up property for very long periods of time
What are the 2 elements to the rules of perpetuity?
- Remoteness of Vesting Rule
2. Inalienabilty Rule
What is the remoteness of vesting rule?
An interest under a trust is void if it does not vest within the perpetuity period. For trusts taking effect after 6 April 2010, the period is 125 years
What is the inalienability rule?
The following perpetuity periods are acceptable:
- A human life in being plus 21 years
- A fixed period of up to 21 years
- A period express as being ‘for as long as the law allows’ which will be taken as 21 years
- A period assumed to be 21 years when no period is permitted §
How can a trust be created?
Either by a person declaring themselves trustee for another or by the transfer of property to another with a declaration that the transferee holds as trustee
What are the requirements when a settlor declares themselves as a trustee?
Must demonstrate by words or conduct they intend to be legally bound. The requirements of certainty, beneficial principle and perpetuity rules must be in place.
What are the 2 elements that must be satisfied when the settlor transfer to another trustee?
- Settlor must transfer the trust property in the right and legal fashion
- The settlor must make a declaration of trust
What is a declaration of trust?
Settlor must demonstrate by words or conduct that they intend the trustee(s) to be legally bound, satisfying the requirements of certainty, the beneficiary principle and perpetuity
What are the formal requirements for a declaration of trust?
There are none however a trust of land is unenforceable unless there is written evidence of the declaration of trust signed by the settlor
What is the process of constitution?
Transferring the legal title to property from one party to another.
How must a settlor transfer land to a trustee?
Legal owner must execute a transfer deed, which must then be registered at HM Land Registry, usually by the transferee
How must a settlor transfer shares to a trustee?
The donor must sign a stock transfer form, which must then be registered with the company, by either the donor or the donee
How must a settlor transfer chattels to a trustee?
The owner must have the intention to transfer the chattels and must deliver them to the recipient. Alternatively, transfer can be made by deed.
How must a settlor transfer a bank account to a trustee?
By providing a signed, written notice of the transfer to the bank
What is the status of a trust before the appropriate transfer is made?
Incompletely constituted
What is the equitable maxim that ‘equity will not assist a volunteer’?
If an individual attempts to make a gift of some property to another but fails to transfer the legal title in the correct matter, equity will not normally come to the aid of the intended donee
What are the 5 exceptions to ‘equity will not assist a volunteer’?
- ‘Every effort’ test
- Donatio Mortis Causa
- Fortuitous Vesting
- Proprietary Estoppel
- Unconscionability
What is the ‘every effort’ test as an exception to ‘equity will assist a volunteer’?
If the donor has done everything required of them to transfer the property and has put the property outside the donor’s control, an imperfect gift is enforceable.
When would the every effort test not apply?
Where the settlor retained possession of the completed transfer
What is the donation mortis causa as an exception to ‘equity will assist a volunteer’?
A gift mortis causa (by reason of death) may be enforced if:
- the donor delivers the property to a donee while in contemplation of imminent death
- with the intention that the property be given to the donee if the donor dies and be returned if the donor survives
- the donor dies
When will donatio mortis causa not apply?
If the donor had not objective basis to believe that death is imminent
Will constructive delivery be enough for the creation of a trust?
Yes e.g. handing the keys to a car or title deeds to a house
What is fortuitous vesting as an exception to ‘equity will assist a volunteer’?
If the intending donee dies before the transfer is made, the donee becomes their personal respresentative the transfer is complete
When would the fortuitous vesting rule not be valid?
Where there is evidence to suggest that the donor changed their minds before they died.
What is proprietary estoppel as an exception to ‘equity will assist a volunteer’?
If the donee can prove that upon reliance, they have acted to their detriment based upon the assurance of the transfer
What is unconscionability as an exception to ‘equity will assist a volunteer’?
A gift may be enforceable if it would be unconscionable for the donor to change their mind and go back on their intention
How can a testamentary trust be formed?
Usual rule is that all of the terms of the trust must appear in the will. The requirements of certainty, beneficary principle and perpetuity rules must be satisfied
Is there a requirement to transfer the property in a testamentary will?
No as the property will be vested in the trustees by the death
What are secrets trusts?
Allows the testator to keep the beneficiaries out of the will
What are the 2 types of secret trusts?
Full secret and half secret trusts
What is a fully secret trust?
The entry in the will looks like an outright gift to a nominated person
What is a half secret trust?
Mentions a trust exists but keeps the identity of the beneficiary secret
How is a secret trust enforced?
The beneficiary must prove the terms of the trust by clear and convincing evidence.
Does communication to the trustee of a secret trust need to be before the will was made?
No can be at anytime before the testators death
When would a secret trust fail?
When the legatee expressly refused to accept the trust or did not know of the intended trust until after the testator’s death however if the legatee does not expressly reject then they are bound
How is a half secret trust enforced?
The beneficiary can enforce as long as their identity was communicated to the trustee at or before making the will and the language of the will is consistent with this communication
What is a fixed trust?
A trust under which the trustees have no freedom as to how the trust property is to be distributed between the beneficiaries
What is a vested interest?
An interest whereby no conditions are attached
What is a contingent interest?
An interest with conditions attached
How can a fixed trust be enforced by a beneficiary?
This can be enforced against the trustee and have the right to receive what they are identified to receive
What is a discretionary trust?
A trust under which the trustees may choose how to distribute the trust property
How can an discretionary trust be enforced?
Each member of the class has the right to enforce the trust and may sue the trustee for breach of trust
What is the rule is Strong v Bird?
This is the fortuitous vesting rule
What is the rule in Saunders v Vautier?
Allows for the termination of a trust by all of the beneficaries
What is the process if a trust is to be terminated by the beneficiaries?
If all the beneficiaries have an absolute interest in the trust and are of full age and sound mind, they can call for the transfer of the trust property and trustees are required to obey the instruction
When will beneficiaries be unable to terminate a trust?
Where the beneficiaries include a minor or where they do not all agree
What are resulting trusts?
Trusts implied by law based on the presumed by unexpressed intention of the settlor
What are the 2 types of resulting trust?
- Trusts arising following a voluntary transfer or purchase in the name of another
- Trusts arising on failure to exhaust the beneficial interest under an express trust
What is the general rule in voluntary transfer and purchase money cases?
That equity presumes that the transferor did not intend to make a gift and the transferee holds to property on resulting trust.
What are the management duties for a resulting trust?
There are none - the transferee sole duty is to convey his title to the Transferor.
What is the general presumption when purchase money is provided to purchase real or personal property?
That the Transferee holds the property on resulting trust for the transferor.
What is the general presumption where X and Y both contribute towards the purchase price however the property is transferred into Y’s sole name?
Y holds the property on trust for himself and X in proportion to their respective contributions
What is the requirement regarding the use of the consideration (gifted funds) for a resulting trust to be found?
Consideration must be used for the purchase and cannot be to make improvements on the property or to pay taxes etc.
What is the requirement regarding the time when consideration (gifted funds) is provided for a resulting trust to be found?
Consideration must be supplied at or before the time the receiver takes the title.
Who holds the burden of proof for proving whether a resulting trust has arisen?
The beneficiary of the trust must provide clear and convincing evidence that they supplied the consideration.
Can the presumption of a resulting trust be rebutted?
Yes, the title holder must submit evidence that no trust was intended and that the money used as consideration was a gift, loan or debt owing.
What is the exception to a resulting trust being presumed?
Where the giftor is treated as being under a moral obligation to make financial provision for the giftee.
In what types of cases would a giftor be treated as being under a moral obligation to make a financial provision?
A gift from husband or fiance
A gift from father
A gift from mother - only when there is no father figure
How can the presumption of advancement be rebutted?
By showing they did not intend to make a gift but instead intended to retain an equitable interest in the property.
What evidence is admissible to show a resulting trust?
Evidence of the surrounding circumstances at the time of transfer. Only acts and declarations made by an individual before or at the time of purchase will be admissible.
What will the courts do where the property transfer was made as part of an illegal or fraudulent transaction for a resulting trust?
Consider whether it is in the public interest to allow the claim taking into account all relevant factors.
When else will a resulting trust arise?
Where an express trust fails for some reason.
How must legal owners of a property register their equitable interests in a property?
By an express declaration of trust stating the proportionate shares in which they hold the equitable interest. This will be conclusive evidence to the inequal shares and funds will be shared out in this way
If a property is held as joint tenants, how will the proceeds be distributed on sale?
The beneficial interest is held in equal undivided shares and therefore the will be distributed equally no matter the proportion of their actual contributions
What must the legal owners in a property do if there is no express declaration of trust however wish to split the proceeds equally?
Prove that both parties intended otherwise by proving a common intention
How can a common intention be proved by legal owners of a property?
The courts will look at the entire course of conduct between the parties in relation to the property, including:
- advice received by the parties or discussions they had at the point of purchase
- Purpose for which the property was purchased
- Motivation for purchasing the property jointly
Nature of relationship between the parties
- Whether there are children of the relationship for which the parties have a responsibility to provide a home
- The way in which the parties have arranged their finances
- The way in which the parties paid bills and other outgoings in relation to the property
- Reason why one party was authorised to give a valid receipt for capital monies
How can a non-legal owner assert an interest over the property?
- Express Declaration of Trust
- Common Intention Constructive Trust
How would an express declaration of trust be dealt with when there is only one legal owner?
The declaration of trust would need to be in favour of the non-legal owner confirming they have an enforceable beneficial interest
How can a declaration of trust in favour of a non-legal owner be overridden?
A proprietary estoppel claim
How can a proprietary estoppel claim be established to override a declaration of trust in favour of a non-legal owner?
The claimant must demonstrate:
- A representation was made or assurance was given to the claimant
- The claimant relied on the representation or assurance
- The claimant incurred some detriment as a consequence of that reliance
The assurance for proprietary estoppel to be established must be acquiescence - what does this mean?
The assurance must be a clear representation or passive encouragement
What remedy is usually given if proprietary estoppel is proven in favour of a non-legal owner of a property?
Depends on the claimant’s expectation and the detriment suffered, which will be influenced by the context of the claim
What must a claimant establish when attempting to assert an equitable interest in a family home by common intention constructive trust?
- The parties had a common intention (either express or inferred) that the claimant should have an equitable interest in the property
- The claimant relied to his detriment on the common intention
How can parties establish they had an express common intention?
The claimant must show that there were actual discussion between the parties which led the claimant to this belief. This must be specific to the ownership of land and not just sharing the home or a family together
What might a courts infer a common intention from?
- Direct contribution to the purchase price
- Mortgage payments
- Payment of household expenses made specifically to enable the legal owner to make mortgage payments
- Substantial renovations to the property by one party
What will the court class as detrimental reliance for the purpose of asserting a claim over the family home?
Where the claimant has made payments towards household expenses, mortgages. Redecoration will not suffice
What does the court consider when quantifying the claimant’s shares of the beneficial interest in the family home?
The court will attempt to infer the parties’ intentions and they will consider the parties conduct through their ‘whole course of dealing’.
What is a purpose trust?
A trust to accomplish a purpose, rather than for a benefit of a person
What are the 3 rules that apply to charitable trusts?
- No requirement of ascertainable human beneficiaries
- Cy-Pres doctrine applicable
- May be perpetual
Name 3 of the purposes for which a charitable trust will be deemed valid
- Prevention or relief of poverty
- Advancement of education
- Advancement of religion
- Advancement of health or saving of lives
- Advancement of citizenship or community development
- Advancement of the arts, culture, heritage or science
- Advancement of amateur sport
- Advancement of human rights, conflict resolution or reconciliation or the promotion of religious or racial harmony or equality and diversity
- Advancement of environmental protection or improvement
- Relief of those in need because of youth, age, ill-health, disability, financial hardship or other disadvantage
- Advancement of animal welfare
- Promotion of the efficiency of the armed forces of the Crown or of the efficiency of the police, fire and rescue services or ambulance services
- Other purposes previously recognised as charitable
Must a charitable trust be for the public benefit?
Yes the trust must bestow (1) a charitable benefit and (2) to the public or a section of the public
What are the requirements for public benefit of a charitable trust?
The purpose must be for the benefit of the general public or a sufficient cross section of it
What is the test for whether a charitable trust is valid?
The public benefit test
If a charity charges fees, will this likely be acceptable as a charitable trust?
No
Are political purposes a charitable trust?
No cannot be political parties and cannot have political purposes
Must the purpose of the trust be exclusively charitable?
Yes - non-charitable purposes are not permitted unless they are merely incidental to the principal charitable purpose
Where a trust contains more than one purposes, must all of these purposes be charitable in order for a charitable trust to be valid?
Yes however if a trust directs trustees to divide gifts between some charitable and some non-charitable objects, the courts can sever the charitable part from the non-charitable part and allow the charitable part to take effect
Who enforces a charitable trust?
The attorney general on behalf of the public at large
Can a charitable trust be perpetual?
Yes
Whats the alienability rule?
Protects against a trust from being held indefinitely while the income is applied for some private purpose
Does the inalienability rule apply to charitable trusts?
No, so a direction to trustees of a charity to invest the capital and apply the income for the charitable purpose is valid
What is the remoteness of vesting rule?
An initial gift to charity must vest within the perpetuity period. However, a gift from one charity to another can take effect at any distance in time
What is the cy-pres doctrine?
A doctrine permitting the court to direct that the trust property be applied to another charitable purchase as close as possible to the original one rather than allowing the trust to fail, which in the case, the trust property would pass on resulting trust to the settlor or their estate
When a charitable gift or trust is impossible, when could the cy-pres doctrine be applied?
When the settlor has shown a general charitable intention
When a charitable trust or gift becomes impossible, how can a court apply the cy-pres doctrine?
The funds may be applied without any requirements to show general charitable intention on the part of the settlor
What are the indications of a general charitable intention?
- Gift to Specific Named Charity
- Other Gifts to Charity
- Detailed plans
- Proceeds of collecting boxes and anonymous gifts
When would an indication of a charitable intention be present for gift to specific named charity?
Where a testator has taken care to identify a specific named charity in their will, general charitable intention is difficult to find.
In a case where the charity named in the will never existed, it is easier to infer general charitable intention
When would an indication of general charitable intention shown by other gifts to charity?
The court will look at the will as a whole and if there is more than one gift to charity, a general charitable intention is more likely
When would an indication of a general charitable intention be shown by detailed plans?
Where a testator has set out plans for the establishment of a charitable trust but there are insufficient funds to carry them out, the court is likely to find a general charitable intention if the plans are very detailed
When would an indication of a general charitable intention by shown by proceeds of collecting boxes and anonymous gifts?
General charitable intention is not required where money has been collected or raised and the donors are not known, even in cases of initial failure
What is a Denley Trust?
A trust which appears to be for a private purpose will succeed if it is actually for the benefit of ascertainable human beneficiaries who may enforce the trust
Who can enforce a Denley Trust?
The identifiable individuals can enforce the trusts by injunction if the trustees are in breach.
Can beneficiaries of a Denley trust enforce the trust under the rule of Saunder v Vautier?
No as the identifiable individuals are not beneficiaries with full beneficial entitlement
What are honorary trusts?
Trusts for the maintenance of specific animals, trusts for the saying of private masses, and trusts for the maintenance of specific graves or tombs are the primary non charitable purpose trusts that are regarded as valid
Will an honarary trust last beyond the perpetuity period?
No, they must be for 21 years and no more. A trust that may continue for more than 21 years will fail from the outset
Who can enforce an honorary trust?
No one, they are a valid trust however cannot be enforced as there is no beneficiary who can enforce the trust. The trustee is on their honour to carry out the trust
What happens if a trustee of an honorary trust fails or refuses to carry out their obligations?
A resulting trust will be imposed for the settlor or the settlors estate
How are the original trustees usually appointed?
Though the trust instrument or the court will appoint them
Must a trustee accept the office of trustee?
Yes, they must have notice of the appointment and either expressly or impliedly accept
Can a trustee refuse appointment of the trust?
Yes, they are not obliged to accept and before acceptance, a trustee can disclaim or refuse appointment however they cannot accept and disclaim parts of the trust
What is the minimum number of trustees?
There is no minimum
What is the minimum trustees for a trust in land?
2
What is the maximum number of trustees for a trust of land?
4
What is the maximum number of trustees?
There is no maximum
Can a settlor add trustees after the trust has been created?
Not unless the trust instrument allows this
Who has the power to appoint additional trustees?
Existing trustees unless the trust instrument says differently
What are the limitations as to trustees adding additional trustees?
Cannot increased the number of trustees to more than 4 even when it does not include land
When should a trustee be replaced?
To replace a trustee who:
- Dies
- Refuses to act
- Remains outside the UK for a continuous period exceeding 12 months
- Is unfit to act
- Is incapable of acting
- Desires to be discharged
Who must the appointment of a replacement trustee be made by?
- The person named in the trust document, if none
- The surviving or continuing trustees, if none
- The personal representatives of the last surviving trustee, if none,
- The Court
Do all outgoing trustees need to be replaced?
No
How does the appointment of the new trustee need to be made?
In writing however does not need to be by deed
When would the leaving trustee be a party to the appointment of the new trustee and when would they not?
A retiring trustee would be appointment to the new trustee however a trustee that is removed against their will, will not be.
What powers does a beneficiary have to control the trustees?
None unless there has been a breach
Under what circumstances will the beneficiaries have the power to select trustees?
- There is no person nominated in the trust instrument to appoint new trustees
- The beneficiaries under the trust are of full age and capacity and taken together they are absolutely entitled to the trust property
- The beneficiaries act unanimously
What power does the court have to appoint trustees?
They have an express power to make an order appointing new trustees either in substitution for or in addition to existing trustees, whether it is expedient to do so.
What must a trustee do before retirement?
- They obtain the consent by deed of all their co-trustees and the person given power to appoint new trustees by the trust instrument
- They leave in office at least 2 trustees or a trust corporation
What is the trustee duty not to profit from the trusteeship?
A trustee should not put themselves in a position where their duty and person interests conflict, the general rule is that a trustee should not make a personal profit from their position
Where a trustee makes a profit from their trusteeship role, what will happen to the profit?
Equity imposes a constructive trust to prevent the trustee from profiting
If a trustee obtains a remunerative employment due to the trusteeship, what happens to the remuneration?
It is held on constructive trust for the trust beneficiaries unless it can be shown that the trustee would have obtained the position without the trust, the rule does not apply
What happens if a trustee makes a personal profit as a result of opportunity or information gained from their trusteeship?
The trustee holds that profit on constructive trust, even when there is no obvious conflict between the interests of the trust and the trustee
What is the general rule regarding remuneration for a trustee?
They may not charge for services however can recover out-of-pocket expenses
When will a trustee be able to charge for their services?
- Where there is a charging clause in the trust instrument
- A professional trustee may charge for their services (as long as they are not the sole trustee, co-trustee gives their written consent and there is no express provision in the trust instrument relating to trustees charges)
- Trust corporation may charge reasonable remuneration
- All beneficiaries consent to remuneration being given
- Court can authorise remuneration to be given
What is the trustee duty regarding no self-dealing?
A trustee must not purchase any property owned by the trust - even if they pay full market value
If a trustee purchases trust property, what is the effect of the transaction?
The transaction is voidable by the beneficiaries
Can a court permit self-dealing?
Yes, in exceptional circumstances
What is the fair dealing rule?
Allows trustees to purchase the beneficial interest of a beneficiary, but it will be voidable if the trustee cannot show that they paid a fair price, made full disclosure of all material facts to the beneficiary, and in no way abused their position
What are the trustees equitable duties?
A trustee must acquire the trust property, take control of it and ensure its preservation including seeing legal title is vested in all trustees and that all trust property is properly segregated from the trustee’s personal assets
What would the effect of the failure to segregate trust property and trustee’s property?
A breach of trust
What is the trustees duty to observe the terms of the trust?
The settlor may limit or extend the trustee’s powers and duties by making specific provision in the trust instrument when the trust is created
What is the trustees duty of care?
Trustees must meet the requisite duty of care such as to invest in trust property.
What is the statutory duty of care owed by the trustees?
Trustees must exercise ‘such care and skill as is reasonable in the circumstances’ taking into account any special knowledge the trustee has, or holds himself as having
What is the statutory duty of care for professional trustees?
They will be held to a higher standard than lay trustees, as in determining whether they acted reasonably under the circumstances, a court will take into account any special knowledge or experience that a person in that profession would have
What is the test for the standard of care for the trustees?
The traditional test applies = trustees are under a duty to act with the ‘prudence of an ordinary man of business’ acting in relation to their own affairs
What is the trustees duty to act jointly?
If there is more than one trustee they must act jointly. Each trustee must remain active in the running of the trust and the trustees must act unanimously in the exercise of their discretions
What is the trustees duty to act personally?
Trustees must act personally and have no general power to delegate their functions
What are the exceptions as to when the trustees are not under a duty to act personally?
- Administrative functions
- Investment decisions in certain circumstances
- All functions by power of attorney
What is the trustees duty to take possession of trust property?
Trustees must ensure that all trust property is in their joint possession and control.
If the trust property is left in control of one trustee, are the other trustees responsible?
Yes, the co-trustees will be liable if that trustee misappropriates the property
What is the trustees duty to keep accounts and disclose information?
Trustees must keep accounts and records, and they must produce them to the beneficiaries when required. Disclosure enables the beneficiaries to hold the trustees to account.
What is the trustees duty to act impartially?
The duty of loyalty requires that the trustee act impartially with respect to all beneficiaries, unless the trust instrument specifies otherwise
What is the trustees duty of confidentiality?
A duty is owed in respect of the information obtained in the course of the discharge of their functions as trustees. The trustees cannot exploit their position for their own personal gain.
Can beneficiaries waive the right to confidentiality?
Yes if they are fully informed by the trustees
What is the trustees duty to invest?
Trustees have a duty to invest trust funds in order to produce an income.
What must the trustees ensure regarding their duty to invest?
- The investments they select are authorised either by statute or the trust instrument
- They take into account the relevant criteria in selecting investment
- They take necessary advice in making investments
- They keep their investments under appropriate review
What is the general power of investment?
Trustees may make any kind of investment, other than an investment in land, that they could make if they were entitled to the trust assets
What is a trustees power to acquire land?
Trustees may acquire a freehold or leasehold interest in land in the UK for any reason.
Is a trustee authorised to purchase land outside the UK?
Not unless the trust instrument confirms so
Can statutory powers granted to trustees be amended or extended?
Yes by the trust instrument
What is the standard investment criteria?
When exercising any power of investment trustees must have regard to the standard investment criteria which is:
- The suitability to the trust of the type of investment proposed and the particular investment under consideration
- The need for diversification of investments of the trust so far as appropriate to the particular circumstances of that trust
What is the trustees duty to obtain advice prior to investment?
Trustees must obtain and consider ‘proper advice’ having regard to the standard investment criteria
What would be deemed ‘proper advice’ prior to investment?
It is dependant on the situation however is the advance of a person the trustees reasonable believe to be qualified to give it by reason of their ability and practical experience
Is the test for whether ‘proper advice’ has been obtained objective or subjective?
Both - the belief must be genuine and reasonably held by the trustee
Does the person providing ‘proper advice’ prior to investment need to be a professional?
No, merely a person experienced in such matters and suitable to provide investment advice
Will ‘proper advice’ always be required prior to investment?
No, if the trustees reasonably conclude in all the circumstances advice would be unnecessary and inappropriate
What is the trustees responsibility regarding the review of their investments?
Trustees must keep the investments under review and consider whether, having regard to the standard investment criteria, they should be varied
What is the standard of care owed by the trustees regarding their duty to invest?
There are 2 -
- Statutory standard - to act with such care and skill as is reasonable in all the circumstances
- Reasonable standard - to act as a prudent businessman would act if investing on behalf of a person he felt morally obliged to provide
Can a trustee delegate investment decisions?
Yes to an asset manager
What rights do beneficiaries have?
- Right to Compel exercise of duties
- No right to control the exercise of discretion
- Right to inspect trust documents
- Powers when beneficiaries are absolutely entitled
What is the beneficiaries right to compel exercise of duties?
If the trustees are not carrying out their duties, the beneficiaries may compel the trustees to do so, if necessary by application to the court.
What is the beneficiaries right to control exercise and discretion?
They cannot unless they can show the way the trustees exercised their discretion was irrational or capricious. If the trustees are acting within their powers they have no control over the trust or how this is controlled.
What is the exception as to where beneficiaries will have a right to control the trustees exercise of discretion?
If the trustees have given the beneficiaries a legitimate expectation that their discretion will be exercised in a particular way, they may be expected to warn the beneficiaries if they are to change their policy
What is the beneficiaries right to inspect trust documents?
The beneficiaries are entitled to see all the trust documents e.g. accounts, minutes, trust document - except where there are documents that contain details of the trustees discussions in relation to the exercise of their discretion.
What is the beneficiaries powers when they are absolutely entitled?
Where the beneficiaries are of full age and capacity and between them they are absolutely entitled to the entire equitable interest, they have 2 special powers:
- They may be agreement, require the current trustees to retire and appoint new trustees
- They may by agreement, bring the trust to an end and require the trustees to transfer the trust funds to them in the shares they agree
What must you determine when deciding whether there has been a breach of duty by a trustee?
Whether the trustee was authorised to perform by the trust instrument or not?
If a trustee acted in good faith, skill and diligence with a breach of duty still be deemed?
Yes
What is the liability of trustees for loss?
Beneficiaries may bring a personal claim against the trustees for losses resulting from trustees’ breach of trust, with interest on their liability from the time of breach. The beneficiaries have to prove there has been a loss - if they cannot the claim will fail.
Can a trustee offset loss from one breach by a gain that resulted from another breach?
Generally no, beneficiaries are entitled to keep gains that resulted from one breach and sue to recover the losses that arose from another. However, where there is a linked scheme investment trustees can offset the losses against gains.
How do you determine what trustee is responsible for the loss?
Only the trustee responsible for the breach and loss will be liable.
How is the liability treated if there is more than one trustee in breach?
The liability is joint and several meaning the beneficiaries can sue any of the trustees for the whole of the loss, leaving the trustee to recoup some of the liability from the other trustee if they can.
How is it decided the measure of liability?
The court can apportion liability as it deems just and equitable however it is usually equally.
What happens when the court indemnifies one trustee at the expense of another?
One trsutee will be protected from the liability generated by the other
Who can claim an indemnity from a co-trustee?
A trustee who:
- Alone was guilty of fraud or who was the solicitor to the trust and advised the breach
- Is a professional trustee while the other is a lay trustee
What are the benefits of a proprietary claim against the trustees?
- Where the trustee is insolvent, the beneficiaries will be able to claim the trust property from the trustee ahead of other creditors
- Where the value of the property has increased, the beneficiaries can also claim the increase
If a trustee has directly substituted the trust property for another asset, what are the beneficiaries options?
The beneficiaries may claim that asset or claim a charge over the asset to amount to their losses.
If a trustee still holds the trust property, what are the beneficiaries options?
Simply claim it back
If a trustee has combined trust funds with their own to purchase an asset, what are the beneficiaries options?
Claim a proportionate part of that asset or claim a charge over the asset for the amount of trust property used.
If a trustee has places the trust funds into a bank account with their own funds, what are the beneficiaries options?
Claim a charge over the account for the amount of the trust funds in it
If a trustee places trust funds into a bank account with the trustee’s own money and have drawn money out of the account, what is the beneficiaries options?
The basic rule is the trustee is withdrawing their own money first unless the trustees has purchased an asset and then spent the balance - the beneficiary can claim over the asset instead.
If a trustee puts trust money into their own account and spends the same and then makes subsequent payments into the account, what are the beneficiaries options?
The subsequent payments of the trustee’s own money are not treated as trust money however if the trustee shows a clear intention to repay the trust money their subsequent payments can be treated in this way
What is the limit of the beneficiaries claim where there are funds withdrawn from a bank account and replaced with trustees own funds?
‘Lowest intermediate balance’ - the balance after the last payment out before the next payment in. If the lowest balance is zero, then that is the limit of the beneficiaries claim
What happens if a trustee purchases an asset from the mixed funds of two trusts?
The beneficiaries of the shared trusts share the asset proportionately
What is the first in, first out rule?
If the funds are mixed in a current account, the traditional rule is that the first money into the account is the first money out
What is the proportionate rule?
If it is impractical to use the first in, first out rule, the courts will misapply and divide the money proportionately
What are the 4 defences to breach of liability?
- Consent of Beneficiaries
- Limitation Period
- Exclusion Clause
- Relief in Court’s Discretion
What is the general limitation period for bringing an action against trustees?
6 years
What are the exceptions as to the 6 years limitation period?
- Time does not begin to run against a beneficiary with an interest in remainder until her interest falls into possession
- Fraud
- Action to recover trust property or its proceeds from the hands of the trustees
What is the liability of a third party who acquires the legal title to trust property for value without notice of the trust?
Takes property free of equitable interests of the beneficiaries
What happens if the trust property comes into the possession of a third party who did not pay value for the property, but nevertheless has no knowledge or suspicion that a breach of trust has occurred?
The beneficiaries cannot bring a personal claim against the recipient however can make a proprietary claim to recover the product
What must the beneficiaries prove for a proprietary claim against an innocent volunteer receipt?
- The property was subject of a fiduciary relationship
- The property or its product is identifiable using equitable tracing rules
- The property is not in the hands of the bona fide purchase for value without notice
If a third party receives money of property traceable to a breach of trust with knowledge of the breach, what will happen?
They will be treated as if they were a trustee
If a party has facilitated a breach of trust and acquired trust property, how will they be treated?
They will be treated as if they are a trustee
What will the court consider when deciding whether they will consider equitable remedies?
- Claimant must have a legal or equitable right
- There is no adequate remedy at common law
- Enforcement must be feasible
- Balance the Hardship
