Trusts 2 Flashcards
Bridge of Ayr - restoring not rebuilding - wanted trust to fail but this was unsuccessful
Templeton v Burgh of Ayr
Trustees can be office holders
Parish Council of Kilmarnock v Ossington’s Trs
Trustees can be appointed by name or reference - ‘same trustees as my brother’
Martin v Ferguson’s Trustees
Can accept offie expressly or by implication from actions
Prolonged inaction not enough to constitute resignation, has to be done expressly
Ker v City of Glasgow Bank
Professional trustee
Court will consider whether its in the best interest of the trust for trustee to step down and someone replace them
RBS Plc, Petitioner
Sheriff held that so long as resignation is written and expressed to other trustees then there are various means by which it can be done
McKenna v Rafique
Malversation of office required for removal of trustee
Ciarocca v Ciarocca
Trustee not replaced by heirs or executors when they die. Death divests trustee of title. Property automatically passes to other trustees.
Shenken v Pheonix Life Ltd
Beneficiaries have personal rights to trust patrimony
Inland Revenue v Clark’s Trustees
Directions in private trust to put up statues of family members of testarix. Held to be contrary to public policy.
‘Waste of money’ - ‘Vanity’
McCraig’s Trs v Kirk of Session of United Free Kirk of Lismore
Wanted shops (that testator owned) to be knocked down in order to build bronze statute of him.
Contrary to public policy - would make the town ‘ridiculous’
Aitken’s Trs v Aitken
£50 each to all pets ‘Celia to have charge of them’
Held to mean the money would go to Celia for the benefit of their pets = reasonable
Flockhart’s Trs v Bourlet
Trustees own trust property but it is immune from their private creditors
Mackenzie v Watson and Stuart
‘Trust’ not essential in declaration
Macpherson v Macpherson
Declaration must include:
- Beneficiaries
- Trust property
- Purpose
Clark Taylor and Co Ltd v Quality Site Development
Declaration of trust must be intimated to at least one beneficiary
Allan’s Trs v Lord Advocate
Performance of act by trustee can only be at variance with terms of trust when it isn’t expressly prohibited
Marques of Lothian’s CB
If trustees appoint agent and loss is incurred, trustees won’t incur liability due to the negligence or fraud of that agent.
(Will be if they fail to exercise due care and supervision of the agent)
Thomson v Campbell
Must monitor agent’s work and replace them of they perform badly
Must not give too many discretionary powers to agent
Scott v Occidental Petrol (Caledonia) Ltd
Power to advance capital ONLY where beneficiary has VESTED or CONTINGENT right in the capital AND advance is necessary for purposes of education and maintenance of beneficiary
Macfarlane v Macfarlane’s Trs
Trustees with personal interest cannot take part in vote
Shanks v Aitken
Lack of consultation re appointment of new trustees meant appointment invalid
Wyse v Abbott
Consultation unnecessary where trustee uncontactable
Malcolm v Goldie
Duty of care: same degree of diligence that an ordinary man would exercise over his own affairs
Raes v Meek
Duty of care an objective test
Immunity clause will be interpreted narrowly and restrictively
Knox v Mackinnon
Duty to keep trust accounts implied in every trust but can be expressly excluded or by implication
Leitch v Leitch
Breach of trust because hadn’t considered whether investment was in interest of the trust - reasonable person wouldn’t just leave their investment and let it sit
Melville v Nobles Trs
No ultra vires breach where trustees took all possible steps to establish the facts
Lamond Trs v Croom
No ultra vires breach where trustees obtained legal advice as to the extent of their powers
Warren’s JF v Warren’s Ex
Transaction in breach of fiduciary duty can be reducible by beneficiaries
Johnson v Macfarlane
If trustee profits from breach of fiduciary duty they must pay profit into trust patrimony regardless of whether patrimony has suffered a loss
Cherry’s Trs v Patrick
Co-trustees have duty to take steps if funds are misappropriated by another trustee
Millar’s Trs v Polson
Clause absolving trustees from liability for retained investments held ineffective
Clarke v Clarke’s Trs
Professional trustee loaned money to someone who said they’d pay back double the next day - never paid this back = worthless security
Lutea Trs v Orbis Trs Guernsey
Intra vires contracts = trust patrimony only is liable
Cuningham v Montgomerie
Trustee may be personally liable if they don’t make it clear to 3rd party that they’re acting as trustee
Brown v Sutherland
Constructive trust made for benefit of beneficiaries to protect property from creditors due to misconduct
Mortgage Corporation v Mitchells Robertson
Beneficiaries can insist on seeing trust accounts
Tod v Tod’s Trs
Nouvillan v Nouvillan’s Trs
Where one has a duty of care they shouldn’t put this duty in competition with their own interests
Huntington Copper & Sulphur co V Henderson
