I’m an Executor/Trustee.Get me out of here!14 May 2013Presented by:Chris GreenwellScott McKittrickClaire Herbert
What we want to tell you about• Choosing trustees• Removing trustees• Beneficiaries right to information• Duties, obligations and breaches• Reliefs• Protecting trustees who part with trust assets
Choosing trusteesWho chooses trustees?• Trustees are initially chosen by settlor (viatrust document or Will)• New trustees are chosen by an appointor orcurrent trustees (if there is no appointor)• In unusual circumstances new trustees maybe chosen by either the beneficiaries or thecourt
Choosing trusteesFactors that may limit the choice of trustees• The trust document can impose restrictions.• If the settlor or a beneficiary (or potentialbeneficiary) is a trustee, there may be aconflict of interest.• If the trust document does not contain acharging clause, a professional trustee willnot act.
Choosing trustees• If a trustee is a director or shareholder of acompany in which the trustees hold shares,the law does not allow the trustee to receivedirectors fees unless the trust documentexpressly authorises this.• A company can only act as a trustee if itsarticles of association allow it to do so.• There are some specific restrictions on anundischarged bankrupt acting as a trustee ofcertain types of trust.
Choosing trusteesWho can be a trustee?• Settlor• Beneficiary• Professional person• Any other individual• Company• LLPThe trust document can impose restrictions
Choosing trusteesHow many trustees?• Only four trustees can be appointed for atrust of land• Two trustees are required to give goodreceipt under a trust of land except where asole trustee is a trust corporation• It is only permissible to have a sole trusteeif the original trustee was a sole trustee andthe trust is not a trust of land
Choosing trusteesFactors to consider• Individual trustee may know the settlor andhis family personally but there can bepractical problems if he dies or loses capacity• Corporate trustee provides continuity in thetrusteeship but there is likely to be a turnoverof employees dealing with the trust
Choosing trustees• Professional trustee should be regulated andoffer a level of expertise but charges for theservice• A trustee being appointed to an existing trustshould examine books and documents toreview the state of the trust
Choosing trusteesCommon choices for UK trusts• For a small trust, two or three family trustees,who carry out some of the trust administrationthemselves and instruct professional adviserswhen needed.• For a medium-sized trust, between two andfour individual trustees, including both familymembers and professional trustees. Aprofessional trustees firm usually administersthe trust.
Choosing trustees• For a large trust, a corporate trustee and oneor two family trustees. The corporate trusteeusually provides trust administration services.
Choosing trusteesConflict of interest• If the settlor or a beneficiary is a trustee, thereis a possible conflict of interest between hisinterest as settlor or beneficiary and his dutiesas a trustee• If family members are appointed to betrustees of family trust, certain issues need tobe considered e.g. is there a balancebetween different parts of a family
Removing trusteesExpress power of removal• Trustees may be removed by exercise of apower expressly conferred on a person by thetrust instrument• An express power of removal is strictlyconstrued• The power is usually fiduciary (exercised forthe benefit of the beneficiaries and not of thedonee of the power himself)
Removing trusteesReplacement (S.36 Trustee Act 1925)• The power to replace trustees may only beexercised in specific circumstances• The power may be exercised by thosenominated by trust instrument or continuingtrustees (if there is no person nominated)• The power may be limited in scope• Appointment should be made by deed (allowsautomatic vesting under S.40 Trustee Act1925)
Removing trusteesRemoval by the court (S.41Trustee Act 1925)• A claim under this section is appropriate toreplace trustees where two conditions aremet:• It is expedient to appoint a new trustee(s)• It is inexpedient, difficult or impracticable todo so without the assistance of the court• It may sometimes be more appropriate to usecourt’s inherent jurisdiction (e.g. wheretrustee wishes to remain in office)
Removing trusteesRemoval by the court under its inherent jurisdiction• The welfare of the beneficiaries is the focus ofthe courts consideration• The court also exercise their jurisdiction with aview to the security of the trust property, anefficient and satisfactory execution of the trusts,and a faithful and sound exercise of the powersconferred on the trustee
Removing trusteesCompulsory retirement (S.19 Trusts of Land andAppointment of Trustees Act 1996)• This power can only be used if certainrequirements are met and can be excluded bythe trust document• A direction must be given by beneficiaries inwriting• A trustee must retire if he receives a validdirection• Retirement should be effected by deed
Removing trusteesReplacement for mental incapacity (S.20 Trustsof Land and Appointment of Trustees Act 1996)• This power can only be used if certainrequirements are met and can be excluded bythe trust document• A direction must be given by beneficiaries inwriting• Trustee must lack capacity within themeaning of the Mental Capacity Act 2005.• Appointment should be effected by deed
Removing trusteesProcedure for court to remove trustees• Removal may be carried out as part of anadministration claim or as a stand-alone claim• In urgent cases the court may order removalon an interim application• The court will decide who pays costs in aclaim for removal
Right to informationInformation trustees are under a duty to provide• An adult beneficiary who has an interest inpossession is entitled to know of theexistence of the trust and the nature of theirinterest• Objects of discretionary trusts should know ofthe existence and nature of their interest• Trustees ought to inform those who are realpotential candidates for benefit under adiscretionary power
Right to informationPosition before Schmidt -v- Rosewood • Beneficiaries had a proprietary right to seetrust documents• The right to see documents only extended todocuments relating to the ownership,management or administration of anyproperty vested in the trustees
Right to informationPosition before Schmidt -v- Rosewood The trustees were exempt from disclosing:• The agendas of trustee meetings• Correspondence between the trustees• Correspondence between the trustees and thebeneficiaries
Right to informationPosition before Schmidt -v- Rosewood • Minutes of trustee meetings and otherdocuments disclosing:• The deliberations of the trustees as to themanner in which they should exercise theirdiscretionary powers;• The reasons for any particular exercise ofsuch powers; or• The materials on which such reasons were,or might have been, based
Right to informationFacts of Schmidt -v- Rosewood • The case was decided under Manx law, but isbased on English trust law principles andmainly English case law• Two discretionary settlements, created in1992 and 1995 by Mr Schmidts father andestablished under the laws of the Isle of Man• Rosewood Trust Limited had been the trusteeof both settlements since 1997
Right to informationFacts of Schmidt -v- Rosewood • The assets of the settlements were worthover US$105million• The settlor died intestate in 1997, and lettersof administration to his estate were granted toMr Schmidt• Mr Schmidt began proceedings in the Isle ofMan in June 1998, alleging breach of trustand breach of fiduciary duty• Mr Schmidt obtained an order requiringextensive disclosure of information
Right to informationFacts of Schmidt -v- Rosewood Mr Schmidt was not satisfied with the disclosurehe obtained as it ‘raised more questions than itanswered’, especially as parts of some of thedisclosed documents had been obliterated• In June 1999, he brought proceedings seekingfuller disclosure in two capacities:• His personal capacity, as the possible objectof a wide power to add to the class ofbeneficiaries• His capacity as administrator of his latefathers estate
Right to informationFacts of Schmidt -v- Rosewood • The trustees opposed disclosure, arguing thatthe claimant was not a beneficiary under thesettlements, and his father was never morethan a mere object of a power• An order for disclosure was made by the HighCourt of the Isle of Man but set aside on appeal• The claimant then appealed to the PrivyCouncil in London
Right to informationDecision in Schmidt -v- Rosewood The Privy Council held that a proprietary rightwas neither necessary nor sufficient for theexercise of the court’s jurisdiction:• ‘A beneficiary’s right to seek disclosure oftrust documents, although sometimes notinappropriately described as a proprietaryright, is best approached as one aspect of thecourt’s inherent jurisdiction to supervise (andwhere appropriate intervene in) theadministration of trusts’
Right to informationDecision in Schmidt -v- Rosewood • ‘The right to seek the court’s intervention doesnot depend on entitlement to a fixed andtransmissible beneficial interest. The object ofa discretion (including a mere power) may alsobe entitled to protection from the court ofequity, although the circumstances in which hemay seek protection, and the nature of theprotection he may expect to obtain, will dependon the court’s discretion’
Right to informationDecision in Schmidt -v- Rosewood • ‘No beneficiary (and least of all a discretionaryobject) has any entitlement as of right todisclosure of anything which can plausibly bedescribed as a trust document. Especially whenthere are issues as to personal or commercialconfidentiality, the court may have to balancethe competing interest of different beneficiaries,the trustees themselves and third parties’
Right to informationDecision in Schmidt -v- Rosewood • ‘Disclosure may have to be limited andsafeguards may have to be put in place.Evaluation of the claims of a beneficiary (andespecially of a discretionary object) may be animportant part of the balancing exercise whichthe court has to perform on the materials placedbefore it. In many cases, the court may have nodifficulty in concluding that an applicant with nomore than a theoretical possibility of benefitought not to be granted any relief’
Right to informationPosition after Schmidt -v- Rosewood • Beneficiaries right to information is not basedon any equitable proprietary right but fiduciaryduty of trustees to keep them informed• Beneficiaries are not entitled to disclosure asof right but have a legitimate expectation ofdisclosure• Beneficiaries need to prove that prospect ofbenefiting under the trust is sufficient towarrant disclosure requested
Right to informationHow should trustees deal with requests?• Trustees have discretion (the beneficiary hasno entitlement as of right) and should conducta balancing exercise considering all therelevant circumstances at the time• Whether or not trustees decide to exercisetheir discretion to disclose may depend onthe type of document requested• Beneficiaries commonly request documentssuch as the trust document and the settlor’sletter of wishes
Right to informationCommonly requested documents - trust deed• The trust document is a key document, whichtrustees should disclose to beneficiaries ifrequested• The same applies to supplementaldocuments such as:• Deeds of appointment and retirement oftrustees• Instruments adding assets to the trust• Instruments varying the trust
Right to informationCommonly requested documents - redaction• The trustees may wish to redact informationthat does not relate to the beneficiary makingthe request (for example, by obscuring thenames of other beneficiaries in a deed)• If a beneficiary requests redacted information,the trustees ought to inquire why (there mightbe a valid reason, so they should not refuseoutright)
Right to informationCommonly requested documents - accounts• Trustees have a duty to keep clear trustaccounts and to be constantly ready withthose accounts• If a beneficiary requests a copy of the trustaccounts, the trustees should provide a copy• If they do not, the beneficiary can seek theaccounts via the court, and the court usuallyorders the trustees to pay personally (notfrom the trust fund) the costs of obtaining theorder
Right to informationCommonly requested documents – accounts• If a beneficiary seeks disclosure of trustaccounts apparently in order to attack thetrust or trust property (such as a challenge tothe validity of the trust which would be againstthe interests of the beneficiaries as a whole)the trustees ought to be cautious• If the trustees are unsure of the reason forthe request, they should clarify that with thebeneficiary before making a decision.However, there is a strong presumption infavour of disclosure
Right to informationCommonly requested documents - letters of wishes• Settlors often leave a letter addressed to thetrustees setting out their wishes in relation tothe exercise of the trustees discretions.• Trustees must consider those wishes, but arenot bound to comply with them. Settlors oftenspecify that the letter is to remain confidential.
Right to informationCommonly requested documents - letters of wishes• A number of cases provide guidance onbeneficiaries requests to see letters of wishes.• A New South Wales case HartiganNominees Property Limited -v- Rydge (1992)29 NSWLR 405• The Jersey case of Re RabaiottisSettlements  WTLR 953• The recent English case of Breakspear andothers -v- Ackland and others  EWHC220 (Ch)
Right to informationCommonly requested documents - letters of wishesIn the light of the case law, trustees should:• Consider the reasons for the beneficiarysrequest for a letter of wishes to be disclosed, andwhether disclosure would be in the interests ofthe administration of the trust.• Not refuse disclosure simply because the settlorhas requested that the letter remain confidential.• Not feel obliged to give reasons for their decision.• Consider obtaining an undertaking ofconfidentiality or, if appropriate, redactinginformation in the letter before disclosure.
Right to informationCommonly requested documents - legal adviceLegal advice obtained by trustees and paid forfrom the trust fund is privileged but suchprivilege is held for the benefit of thebeneficiaries and is therefore not a reason initself to refuse disclosure of the advice to thebeneficiaries. Where the advice relates to:• Reasons for the exercise of the trusteespowers and discretions, the trustees shouldconsider carefully requests for disclosure.
Right to informationCommonly requested documents - legal advice• A dispute between the trustees and abeneficiary, and disclosure of that advicewould not be in the interests of thebeneficiaries as a whole, the trustees mayexercise their discretion not to disclose(although this is subject to the courts abilityto override the trustees decision).• A claim against the trustees for breach oftrust, they are not required to disclose thelegal advice they obtain in order to defend theclaim, which is privileged.
Right to informationCommonly requested documents - company documents• Where trustees hold all the shares of, or have acontrolling shareholding in, a company, abeneficiary may seek disclosure of companydocuments.• Company articles of association usually state thatonly the company directors can see companydocuments.
Right to informationCommonly requested documents - company documents• The leading case in this area is Butt -v- Kelson Ch 197 CA, which established that beneficiaries canbe entitled to see information about underlyingcompanies (as if they were the registeredshareholders) provided that:• The beneficiary must specify the documents hewishes to see.• He must set out why he wishes to see them.• He must provide assurances that he will notdisclose the documents to others.• There must be no valid objections by otherbeneficiaries, or by the company directors (fromthe perspective of the company).
Right to informationOn what basis can trustees refuse disclosure?The trustees may decide (when exercisingtheir discretion pursuant to Schmidt -v-Rosewood) to refuse disclosure because:• There is a legal reason to refuse (forexample, if a document contains privilegedlegal advice).• There is a commercial reason to refuse (forexample, if a document containscommercially sensitive information).
Right to informationOn what basis can trustees refuse disclosure?• The document is confidential (for example, itmight be relevant to one beneficiary but notanother).• Disclosure is impractical or too costly.• The beneficiary has only a theoreticalpossibility of benefiting from the trust.• The information has been requested for animproper purpose (such as challenging thevalidity of the trust, which would not be in theinterests of the beneficiaries as a whole).
Right to informationOther options available before refusing disclosure• Offering redacted documents.• Offering to release the documents to thebeneficiary’s advisers, rather than to thebeneficiary.• Requesting an undertaking in relation to theuse of the information disclosed.
Right to informationOther options available before refusing disclosure• If there is no good reason to refuse, thetrustees ought to disclose (otherwise they areat risk as to costs if the beneficiary then appliesto court for disclosure).• If the trustees are unsure, they can make anapplication to court by a Part 8 claim formunder Part 64 of the Civil Procedure Rules, butthey should consider carefully whether they canjustify the costs of doing so.
Right to informationHow can a beneficiary obtain information?• Ask the trustees (beneficiary traditionallymeets the costs of copying and sending thedocuments)• If the trustees refuse and cannot bepersuaded) the beneficiary could considermaking a court application• The costs of an application are at thediscretion of the court (costs order oftenreflect the outcome of the application)
Right to informationHow can a beneficiary obtain information?• Application under the Probate Rules for aninventory and account
Right to informationDisclosure and litigation/divorce• Trustees can be subject to an order for pre-action disclosure or an order for disclosureonce proceedings have commenced• A beneficiary must disclose any trust interest(including an interest under a discretionarytrust) in the divorce proceedings. The courtcan then order that they disclose certain trustdocumentation and they may in turn requestthis information from the trustees
Trustees duties and obligations• A trustee is one who holds property in trustfor another• Trustees must act honestly and loyally• Trustees must ‘take all those precautionswhich an ordinary prudent man of businesswould take in managing similar affairs of hisown’• (Lord Blackburn, Speight -v- Gaunt 1883).• Trustees not liable for loss or depreciationcaused by factors beyond their control
Duties and obligations• This standard presupposes that the ordinaryman of business acts as though he has amoral duty to others• The standard is objective i.e. it is not acharter for an honest incompetent• The standard cannot be lowered because ofsubjective matters particular the case
Duties and obligations• Statutory dutySection 1 Trustee Act 2000• A trustee:• ‘Must exercise such care and skill as isreasonable in the circumstances, having regard inparticular to• (a) any special knowledge or experience that hehas or holds himself out as having; and• (b) if he acts as trustee in the course of abusiness or profession, to any special knowledgeor experience that it is reasonable to expect of theperson acting in the course of that kind ofbusiness or profession’.
Duties and obligations• Professional trustees.• There are objective minimum standards thathave to be applied to anyone carrying outtrusteeship in a trade or profession.• There are subjective higher standards forthose holding themselves out as havingspecialist knowledge or experience.• Brightman J in Bartlett -v- Barclays BankTrust Co Ltd (1) 1980
Duties and obligations• ‘I am of the opinion that a higher duty of care isplainly due from someone like a trust corporationwhich carries on a specialised business of trustmanagement. (It) holds itself out in its advertisingliterature as being above ordinary mortalsand...capable of providing an expertise which itwould be unrealistic to expect, and a trust todemand, from the ordinary prudent man or womanwho accepts probably unpaid and sometimesreluctantly from a sense of family duty, theburdens of trusteeship…..’
Duties and obligations• Trustees have a duty to keep beneficiariesinformed if they are asked to discloseinformation pertaining to a beneficiariesinterest or reasonable expectation of interest• Trustees are liable to third parties with whomthey contract subject a right of indemnity andobserving their other duties• There is no such thing as a ‘sleeping trustee’.If you are a trustee and decisions are madeby the trustees of the body whether youparticipated or not you are fixed personallywith liability flowing from that decision
Duties and obligations• Note a professional trustee making adecision alongside a lay trustee may besubject to higher obligations in respect ofconsequences flowing from that decision• A professional trustee relied on to advise by alay trustee and doing so carelessly may wellface claims in contract or negligence
Duties and obligations• The powers to which the duties apply:• Investment• Acquisition of land• Appointment of agents, nominees andcustodians• Compounding liabilities• Insurance• Valuations• Audit
Duties and obligations• The duty of care applies to whether a dutyhas been exercised or not and an honest butimproper exercise of duty may attract liabilitythough could be relieved of (which moreshortly)
Duties and obligations• Generally• A trustee in breach of trust for failing tocomply with terms of the trust or duty ofhonesty has personal liability• That liability is to reconstitute the trust fundby making specific restitution wherepossible or paying equitable compensationfor losses that would not have occurred butfor the breach
Duties and obligations• Unlike other claims, for example againstnegligent professionals, the loss inquestion is recoverable even if it could nothave been reasonably foreseen as likely toresult from the breach• Note the obligation and duty is torecompense the trust fund and notnormally individual beneficiaries (who mayhave other causes of action)
Duties and obligations• Breach of duty of care• There are greater restrictions on a trustee’sduty to simply fail to exercise reasonablecare and skill rather than fail to comply withthe terms of the trust or being dishonest.They are subject to loss being foreseeable(the same as the obligation imposed on thenegligent professional)• Put simply this distinction is basicallybetween a negligent or careless trustee anda dishonest trustee or one acting deliberatelyin breach of the terms of his trusteeship
Duties and obligations• Quantification of loss• A trustee causing loss will receive littlesympathy from the court• If intermeddling with trust assets increasesvalue then this belongs to the trust. Atrustee is personally liable if theintermeddling causes loss• If unauthorised investments are madetrustees are liable for loss incurred on salewhether they have any control over thesale date or not
Duties and obligations• If authorised investments are improperlysold the trustees can be required toaccount for the proceeds of sale or replacethem• The trustees are liable for interest from thedate misapplication of funds
Duties and obligations• Gains made out of trust property bytrustees acting improperly belong to thebeneficiaries• Losses out of the same breach have to bemade good by the trustee (there is nooffset)• Trustees are jointly and severally liable butare entitled to contributions from fellowtrustees
Relief from breach• Don’t panic. There are ways of getting youout of there!• If a beneficiary has participated in orpositively consented to a breach of trust of hisown free will, he cannot take action whetherhe benefited or not• Beneficiaries relief and acquiescence i.e.consent to breaches after the event
Relief from breach• A beneficiary actually instigates ordemands/requests the breach of trust• Certain claims against trustees must bebrought within six years of the breach• There may also be a general remedy in law toblock cases if they have been long delayedand are not subject to limitation• Broadly dishonesty or intermeddling with trustassets will never be relieved
Relief from breach• Section 61 Trustee Act• The Trustee’s ‘get out of jail free card’• ‘If it appears to the court that a trustee is ormay be personally liable for any breach oftrust but has acted honestly and reasonablyand ought fairly to be excused for the breachof trust and for omitting to obtain thedirections of the court in the matter in whichhe committed such breach, then the courtmay relieve him wholly or partly frompersonal liability for the same’.
Relief from breach• Thank goodness there is this provision!• But note:• It does not relieve the turning of a blind eyeto the obvious• It is unlikely to relieve wanton and dilatorycarelessness however honest• The greater the amount of money involvedthe more difficult it may be for the trusteeto claim relief
Relief from breach• Professional trustees are far less likely tobe relieved under Section 61• Lay trustees or non-lawyer, or nonspecialised professional trustees are welladvised to take legal advice if only as aninsurance policy against alleged breach• Finally it may be possible to obtain trusteeindemnity insurance
Protection of trusteesWhen do trustees part with trust assets?• Trustees change and retiring trustees transferthe assets to successor trustees• Trustees exercise their powers to appointassets to beneficiaries or to transfer them tothe trustees of another trust• The terms of the trust provide that the trustends and the trustees transfer the assets tobeneficiaries who are absolutely entitled tothem
Protection of trusteesWhy may trustees need protection?• A trust is not a legal entity so trustees act onbehalf of the trust in their personal capacities.This means that they may become personallyliable under:• Contracts;• Indemnities given to previous trustees;• Claims made against them
Protection of trusteesWhy may trustees need protection?• Trustees who have retired, or who havewound up the trust, remain personallyresponsible for liabilities incurred during theirperiod of trusteeship unless they makearrangements to change this
Protection of trusteesProtection under trust law• Right of indemnity (from the trust fund forliabilities they incur as trustees) provided theyhave acted properly and within the scope oftheir powers• Equitable lien (gives trustee equitable interestin trust assets to extent of their indemnity).• The lien needs to be preserved if assets aredistributed to beneficiaries• Trustees may need additional protection asthey may not be able to enforce the above incertain circumstances
Protection of trusteesSteps trustees can take to protect themselves• Delaying action• Retaining assets to meet known liabilities thatare not yet due for payment (such as tax andprofessional fees that have not beenquantified) or until they know whether aparticular liability will arise in practice• Expressly preserving the equitable lien• Contractual indemnities• Limiting liability
Protection of trusteesSteps trustees can take to protect themselves• Release by beneficiaries• Legal charge over property• Insurance• Trustees in doubt as to the steps they shouldtake can apply to the court for directions forguidance
Protection of trusteesWhat protection do trustees need in practice?• Before parting with trust assets, trusteesshould take a realistic view of the liabilitiesthat they may face afterwards• Agree tax liabilities with HMRC is possibleor estimate if not• Obtain up-to-date bills/estimates forprofessional fees• Review actual and potential liabilities undercontracts and indemnities
Protection of trusteesConflict of interest• There is always a potential conflict of interestbetween trustees interests in protectingthemselves and their duty to safeguard trustassets in the interests of the beneficiaries• It can sometimes be difficult for a trustee tobalance their need for protection and theinterests of the beneficiaries and in such caseit is advisable for them to consult counsel
Protection of trusteesDistributing to Minors• Trustees cannot rely on any kind of indemnityor consent from a minor beneficiary whendistributing assets• Trustees do not often make substantialdistributions to a minor beneficiary as theycannot give good receipt