Equity & Trusts 70517 Topic 14: Trustees and Beneficiaries
Equity & Trusts 70517 Topic 1 - History and Nature of Equity Topic 2 - Unconscionable Dealing and Undue Influence Topic 3 - Introduction to Estoppel/ Proprietary Estoppel Topic 4 - Promissory Estoppel Topic 5 - Equitable Interests in Property/ Equit’l Assignment of Property Topic 6 - Equitable Assignment of Property Topic 7 - Fiduciary Obligations Topic 8 - Accessorial Liability for Breach of Fiduciary Duty or Trust Topic 9 - Tracing/ Account of Profits Topic 10 - Equitable Compensation Topic 11 - Constructive Trusts Topic 12 - Resulting Trusts Topic 13 - Express Trusts Topic 14 - Duties, Powers, Rights and Liabilities of Trustees; Rights of Beneficiaries
Topic 14 – Trustees and Beneficiaries Equity & Trusts 70517 LECTURE SUMMARY: A: APPOINTMENT RETIREMENT AND REMOVAL B: RIGHTS OF TRUSTEES C: DUTIES OF TRUSTEES D: POWERS OF TRUSTEES E: NATURE OF BENEFICIAL INTERESTS F: RIGHTS OF BENEFICIARIES G: BENEFICIARY’S REMEDIES FOR BREACH OF TRUST
Topic 14 – Trustees and Beneficiaries Equity & Trusts 70517 INTRODUCTION The duties, rights, powers and liabilities of trustees in NSW are regulated by: • The terms of the trust instrument/ deed; • Equitable principles; • Trustee Act 1925 (NSW).
Topic 14 – Trustees and Beneficiaries Equity & Trusts 70517 A: APPOINTMENT RETIREMENT AND REMOVAL Appointment: • Trustees are appointed under the terms of the original instrument or pursuant to a power in it for the appointment of new trustees by third party. • A trust will not fail for want of a trustee: Trustee Act s 70. Removal: Reasons for removal may include: being unfit for office; acting in a way inimical to the trust: McLauchlan v Prince  WASC 274; trustees fundamentally misunderstand their duties and responsibilities; conflict of interest; incapable of acting eg bankruptcy; disappearance. Dominant consideration - interests of beneficiaries: Hancock v Rinehart  NSWSC 646 at -. Mere fact of disagreement with beneficiaries insufficient grounds for removal Re Brockbank; Ward v Bates  Ch 206, nor beneficiaries wishes.
Topic 14 – Trustees and Beneficiaries Equity & Trusts 70517 B: RIGHTS OF TRUSTEES Right of indemnity Right of Contribution Right to directions from the court
Topic 14 – Trustees and Beneficiaries Equity & Trusts 70517 B: RIGHTS OF TRUSTEES Introduction A trustee is personally liable in respect of debts incurred in carrying on the business of a trust because the trust has no legal identity . A trustee’s debts incurred in running the trust are his personally, so that if not paid, the trustee may be bankrupted or the corporate trustee put into liquidation. Creditors have no direct proprietary claim against the trust assets – the proceedings must be brought against the trustee.
Topic 14 – Trustees and Beneficiaries Equity & Trusts 70517 B: RIGHTS OF TRUSTEES Right of indemnity Trustee has a right to be indemnified for expenses and liabilities property incurred in the administration of the trust.
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