Professional Documents
Culture Documents
- Section 45(1)(a) – court has power to appoint new trustee to substitute or add trustee
whenever it is expedient to appoint new trustee & found inexpedient, difficult, or
impracticable to do so without assistance of Court.
- Section 45(1)(b) – without prejudice to power under section 45(1)(a) court may make an
order to appoint new trustee, if the trustee is:
a. Imprisoned;
b. Mentally disordered;
c. Unsound mind;
d. Bankrupt;
e. Corporation under liquidation or has been dissolved.
- Bhikku Daeng v Maung Shwe Tyn – The court had inherent jurisdiction to appoint
trustees & was not fettered by trust deed or by S.40 Trustee Act. The court will not
appoint someone given the testator wish as well as the likelihood of his bias to the
prejudice towards some of the beneficiaries.
- Re Tempest - in exercising its discretion to appoint a new trustee, the court would have
regard to: i) the wishes of the settlor; ii) should not appoint a person interested under the
trust; iii) should consider whether the appointment would promote or impede the
execution of the trust.
How many trustee?
- Section 39(1) – limitation of the number of trustees (express private trust – number of
trustees shall not exceed 4, if more than 4, the first four named shall alone be the trustees.
- Section 39(2) – exceptions: charitable, religious, or public purposes (may exceed 4)
Retirement
- Retirement means a discharge from further responsibility and liability under the trust.
- The trust instrument may make specific provisions in respect of the retirement of trustees.
a. Express Provision
- Section 40(1) – enables a trustee to retire (desire to be discharged) if he is being replaced
by another trustee or trustees.
- Section 43(1) – provides for retirement of a trustee without a new appointment but
subjected to prescribed condition.
o Trustee is desirous of being discharged from trust must put request in writing
o Consent from remaining trustees must be given in writing
o Considered as retired even if no new trustee has been appointed in his place
o There must at least 2 trustees or 1 trust corporation left to administer trust
c. Court Order
- Section 45 – court may make an order appointing new trustee or substitutes in prescribed
manner. Court also enjoy inherent jurisdiction to allow trustee to retire.
Removal
a. Express Provision
Disclaimer of trusteeship
Being a trustee is not compulsory. When chosen by the settlor, there is no obligation on the
individual or corporation to accept the office of trustee.
Any person nominated to be a trustee can choose to disclaim it. But once accepted, then
cannot disclaim.
Re Lister - for the disclaimer to be effective it must be of the whole trust and not just a part
of the trust. If the disclaiming trustee was sole trustee or if all the trustees disclaim then if
inter vivos the settlor himself will become the Trustee and if the Trust was through a will, the
personal representative will hold on trust.
Vesting of trust property
The vesting of trust property in new or continuing trustees is provided for under Section 44
of the Trustees Act 1949
Once property is vested in trustee, it becomes completely constituted trust. Trust property is
transferred to initial trustees by settlor himself & not by his personal representatives.
Upon death of testator, trust property does not automatically vest in trustees. Entire estate of
deceased including trust property first vests in executor named in testator’s will. If testator
has not named executor, then testator’s property will be administered by administrator.
Administrator will hand over trust property to trustee once task is completed. If there are no
such persons, then it is the duty of administrator to ask the court to appoint the trustees & it is
the duty of court to appoint trustees.
If trustees disclaim, property still vest in settlor pending appointment of new trustees. Where
a trustee dies, trust property vests in the remaining trustees. If sole trustee, trust property vests
in his personal representatives.
Section 44(1) – vesting of trust property in new or continuing trustees
Section 44(3) - express vesting declaration
Section 48 - Vesting orders of land
Section 50-57 (vesting order)
Fiduciary nature of trusteeship
a. Remuneration
Fundamental principle: A trustee cannot expect remuneration for performing duties in
relation to the trust except:
- provided by the trust instrument;
- authorised by the court;
- authorised by legislation s.46
Besides, section 35(2) of the Trustees Act also provides that the trustee may recover the costs
and expenses in exercising the trust.
Barret v Hartley –A trustee must not make a profit from his trust unless authorised in trust
deed or approved by all beneficiaries, a trustee cannot charge for his time and trouble. This
case reaffirmed that the trustee cannot expect remuneration.
Remuneration is provided for in the trust instrument
The settlor may authorise the trustees to be paid from the trust funds, but such power is
required to be expressed in the trust instrument. The court will not imply such charging
clauses. The trustees are not entitled to charge any sums as they wish but may only charge a
reasonable amount which would vary with the circumstances of each case.
Re Chapple - the usual professional charges was held to restrict the remuneration of the
solicitor to professional services only and did not extend to the other thing a trustee could
perform himself without being a solicitor.
Remuneration authorised by the court
Boardman v Phipps - A solicitor for a trust fund noticed a significant opportunity in the
accounts of the company. He utilised this opportunity with the knowledge of some of the
trustees, making a significant profit for both the trustees and himself. The agent in this case
had done valuable work and acted openly and above board. The court recognized the good
effort, which is something more than ordinary, hence the solicitor was able to keep a
significant equitable allowance for his effort.
Brown v Litton - The master of a ship died at sea and there was no way of communicating
back to England this news. The first mate took over and he used the master's funds to trade
and to make a profit. When the ship finally got back to England, the question arose as to who
was entitled to the funds and the profits made with those funds. It was held that the trustee
was entitled to fair remuneration for his diligent.
Re Duke of Norfolk’s Settlement – a trust corporation accepted the administration of the
trust for a low annual fee. As trustee, it subsequently became involved in an extensive
redevelopment project and was allowed an increase in remuneration because the duties
became unexpectedly onerous.
With consent of all the beneficiaries
Where the beneficiaries are all ‘sui juris’ and absolutely entitled to the trust property, they
may make an agreement with the trustees for the latter to be remunerated. This is an
application of the rule in Saunders v Vautier.
Authorised by legislation – Section 46 of the Trustees Act 1949
Rule in Cradock v Piper
If a trustee is also a solicitor, the trustee can claim remuneration if the work is related to the
litigation in nature, it must not increase the usual expenses overall.
This rule is regarded as an anomaly and will not be extended to non-contentious work and to
persons other than solicitor/trustees, such as barristers, accountants, etc.
Overseas trust assets – Re Northcote’s Will Trust – the principle is that English executors
and trustees, who are entitled to earn a commission under a foreign jurisdiction in which the
trust assets are situated, are empowered to retain such remuneration for their own benefit.
b. Secret Profits
- Not to purchase trust property/beneficial interest
- Not to take remuneration as trustee-director
- Not to compete with trust
- Not allowed to receive bribe
Secret profits – If trustee makes secret profit from a trust, equity will not allow him to retain
the same and shall hold the benefit under the constructive trust.
Trustee may not make an unauthorised profit from his position as trustee. He must not put
himself in a position where his duty to the trust and his own personal interest may conflict.
Lac Minerals Ltd v International Corona Resources Ltd – there was a profit resulting
from the making use of confidential information. The trial judge held that there was no
binding contract, but Lac was still liable for breach of confidence and breach of fiduciary
duty as the director of Lac had insider info for which they quietly buy up the shares and make
secret profit.
Keech v Sandford - A trustee of a lease may not renew a lease for his own benefit but holds
the renewed lease upon a constructive trust for the beneficiaries. The court forbade the trustee
to take for himself a renewed term under a lease which he held for the benefit of an infant.
Purchase of trust property
The general position is that a trustee cannot involved in self-dealing with property belonging
to the trust.
Campbell v Walker - Purchase property at a public auction is breach of duty
Tito v Waddell (No 2) - where a trustee deals with the beneficial interest or acquires it, there
will be an obligation to demonstrate fair dealing (Megarry VC) i.e. there is a burden of proof
on the trustee to demonstrate no advantage was taken of the beneficiary and the beneficiary
had full disclosure of nature of the transaction.
Ex parte James - A bankrupt's estate was purchased by a solicitor to the commission of the
bankrupt. This case concerning conflicts of interest, and the absolute duty to avoid them.
Exceptions to self-dealing
Holder v Holder – the testator appointed his son as trustee. Later, the son has discharged
himself as trustee, the son purchase the farm which is part of the trust property. The court
held that the transaction was valid on the basis that there is no interference in the
administration of estate. Land purchased after trustee renounced his role can do this after
renouncing provided that he didn’t retire with the intention of purchase.
Wright v Morgan – cannot retire from a position in order to purchase trust property
(however, purchase after a legitimate retirement is fine.)
Purchase beneficial interest – Coles v Trecothick – a trustee may purchase the interest
provided that there is a distinct and clear contract; and there is no fraud, no concealment, no
advantage taken, by the trustee of information, acquired by him in the character of trustee.
Director’s fees
Where trustees are appointed as directors of companies on account of trusts and
shareholdings in the related companies, trustee is not to profit from the trusteeship.
Re Macadam – often a trustee will obtain remuneration as a director of a company. If the
directorship was acquired because of his position as a trustee, he will be accountable to the
trust.
But the rule does not apply if a trustee secures directorship not by virtue of his position as a
trustee.
Re Llewellin’s Will Trusts – a trustee may retain remuneration they receive as a director if
the trust instrument authorises the trustee to do so.
Competing with the trust
A trustee is prohibited from competing with any business belonging to the trust.
Re Thompson – Trust property included a yacht broker company. The trustee wanted to set
up a similar business in the same locality. Court ordered an injunction restraining the trustee
because his plans would have taken trade away from the trust business.
Receiving bribes
Where trustee has acted in bad faith, and by doing so made a profit, he is liable for that profit.
Constructive trust may be imposed on a trustee who has received bribes.
Reading v Attorney General – an army sergeant earned 19,000 by transporting smuggled
goods in an army vehicle while in army uniform. Profit was confiscated, sought action for
return after release from prison. Failed as he was a fiduciary and was liable to account for the
profits to the Crown.
AG of Hong Kong v Reid – a fiduciary accepted bribes during the course of his employment
by the Crown. It was held that the Crown was able to claim the property acquired by the
bribes (3 houses) even though the houses were now of a higher value than the bribes
received.