Trusts 2

Question 1

Bridge of Ayr - restoring not rebuilding - wanted trust to fail but this was unsuccessful

Answer 1

Templeton v Burgh of Ayr

Question 2

Trustees can be office holders

Answer 2

Parish Council of Kilmarnock v Ossington’s Trs

Question 3

Trustees can be appointed by name or reference - ‘same trustees as my brother’

Answer 3

Martin v Ferguson’s Trustees

Question 4

Can accept offie expressly or by implication from actions

Prolonged inaction not enough to constitute resignation, has to be done expressly

Answer 4

Ker v City of Glasgow Bank

Question 5

Professional trustee
Court will consider whether its in the best interest of the trust for trustee to step down and someone replace them

Answer 5

RBS Plc, Petitioner

Question 6

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

Answer 6

McKenna v Rafique

Question 7

Malversation of office required for removal of trustee

Answer 7

Ciarocca v Ciarocca

Question 8

Trustee not replaced by heirs or executors when they die. Death divests trustee of title. Property automatically passes to other trustees.

Answer 8

Shenken v Pheonix Life Ltd

Question 9

Beneficiaries have personal rights to trust patrimony

Answer 9

Inland Revenue v Clark’s Trustees

Question 10

Directions in private trust to put up statues of family members of testarix. Held to be contrary to public policy.
‘Waste of money’ - ‘Vanity’

Answer 10

McCraig’s Trs v Kirk of Session of United Free Kirk of Lismore

Question 11

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’

Answer 11

Aitken’s Trs v Aitken

Question 12

£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

Answer 12

Flockhart’s Trs v Bourlet

Question 13

Trustees own trust property but it is immune from their private creditors

Answer 13

Mackenzie v Watson and Stuart

Question 14

‘Trust’ not essential in declaration

Answer 14

Macpherson v Macpherson

Question 15

Declaration must include:
- Beneficiaries
- Trust property
- Purpose

Answer 15

Clark Taylor and Co Ltd v Quality Site Development

Question 16

Declaration of trust must be intimated to at least one beneficiary

Answer 16

Allan’s Trs v Lord Advocate

Question 17

Performance of act by trustee can only be at variance with terms of trust when it isn’t expressly prohibited

Answer 17

Marques of Lothian’s CB

Question 18

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)

Answer 18

Thomson v Campbell

Question 19

Must monitor agent’s work and replace them of they perform badly
Must not give too many discretionary powers to agent

Answer 19

Scott v Occidental Petrol (Caledonia) Ltd

Question 20

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

Answer 20

Macfarlane v Macfarlane’s Trs

Question 21

Trustees with personal interest cannot take part in vote

Answer 21

Shanks v Aitken

Question 22

Lack of consultation re appointment of new trustees meant appointment invalid

Answer 22

Wyse v Abbott

Question 23

Consultation unnecessary where trustee uncontactable

Answer 23

Malcolm v Goldie

Question 24

Duty of care: same degree of diligence that an ordinary man would exercise over his own affairs

Answer 24

Raes v Meek

Question 25

Duty of care an objective test
Immunity clause will be interpreted narrowly and restrictively

Answer 25

Knox v Mackinnon

Question 26

Duty to keep trust accounts implied in every trust but can be expressly excluded or by implication

Answer 26

Leitch v Leitch

Question 27

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

Answer 27

Melville v Nobles Trs

Question 28

No ultra vires breach where trustees took all possible steps to establish the facts

Answer 28

Lamond Trs v Croom

Question 29

No ultra vires breach where trustees obtained legal advice as to the extent of their powers

Answer 29

Warren’s JF v Warren’s Ex

Question 30

Transaction in breach of fiduciary duty can be reducible by beneficiaries

Answer 30

Johnson v Macfarlane

Question 31

If trustee profits from breach of fiduciary duty they must pay profit into trust patrimony regardless of whether patrimony has suffered a loss

Answer 31

Cherry’s Trs v Patrick

Question 32

Co-trustees have duty to take steps if funds are misappropriated by another trustee

Answer 32

Millar’s Trs v Polson

Question 33

Clause absolving trustees from liability for retained investments held ineffective

Answer 33

Clarke v Clarke’s Trs

Question 34

Professional trustee loaned money to someone who said they’d pay back double the next day - never paid this back = worthless security

Answer 34

Lutea Trs v Orbis Trs Guernsey

Question 35

Intra vires contracts = trust patrimony only is liable

Answer 35

Cuningham v Montgomerie

Question 36

Trustee may be personally liable if they don’t make it clear to 3rd party that they’re acting as trustee

Answer 36

Brown v Sutherland

Question 37

Constructive trust made for benefit of beneficiaries to protect property from creditors due to misconduct

Answer 37

Mortgage Corporation v Mitchells Robertson

Question 38

Beneficiaries can insist on seeing trust accounts

Answer 38

Tod v Tod’s Trs
Nouvillan v Nouvillan’s Trs

Question 39

Where one has a duty of care they shouldn’t put this duty in competition with their own interests

Answer 39

Huntington Copper & Sulphur co V Henderson